State ex rel. Huebner v. W. Jefferson Village Council - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Huebner, Appellant, v. West Jefferson Village
Council et al., Appellees.
[Cite as State ex rel. Huebner v. W. Jefferson Village Council
(1995), Ohio St.3d .]
Elections -- Method for determining the number of sufficient
signatures on petitions involving proposed municipal charter
amendments.
(No. 95-58 -- Submitted April 4, 1995 -- Decided July 26,
1995.)
Appeal from the Court of Appeals for Madison County, No.
CA94-08-030.
Appellant, David A. Huebner, and other individuals circulated
initiative part-petitions to place a proposed charter amendment
on the November 8, 1994 ballot for the village of West
Jefferson, Ohio. The proposed charter amendment read in part:
"PROPOSED WEST JEFFERSON CHARTER AMENDMENT SECTION (1): BE IT
ORDAINED BY THE ELECTORS OF THE VILLAGE OF WEST JEFFERSON,
COUNTY OF MADISON, STATE OF OHIO, THAT ARTICLE 4 SECTION
4.05(2) shall read:
"'The Village of West Jefferson, Ohio, is hereafter
restricted to taxing wages only that originate within the
boundaries of the Village of West Jefferson, Ohio, at a rate of
1%.'"
On July 18, 1994, Huebner filed the initiative petition,
consisting of nine part-petitions, with the Clerk of the West
Jefferson Village Council during a council meeting. As of the
date the initiative petition was filed, there were 2,272
registered voters in West Jefferson. The number of registered
voters who had voted at the last general municipal election
held on November 2, 1993 was 482. The Madison County Board
of Elections certified that the initiative petition filed by
Huebner contained 208 valid signatures.
On August 15, 1994, appellees, West Jefferson Village
Council members, unanimously voted not to certify the
part-petitions to the board of elections "for the reason that
they are not sufficient in form and in substance." Appellees
believed that the petition did not contain sufficient valid
signatures because it did not have signatures of at least ten

percent of all of the electors in the village, i.e., ten
percent of the 2,272 registered voters or 228 valid
signatures. In addition, appellees thought that the petition
misled signators into believing that the proceedings did not
involve a charter amendment.
On August 19, 1994, Huebner filed a complaint in the Court
of Appeals for Madison County seeking a writ of mandamus to
compel appellees to certify the initiative petition concerning
the proposed charter amendment to the board of elections, so
"that it be submitted to electors at the next regular municipal
election if one shall not occur not less than sixty nor more
than one hundred and twenty days after its passage; otherwise
it shall provide for the submission of the question at a
special election to be called and held within the time
aforesaid." Section 8, Article XVIII, Ohio Constitution.
After Huebner filed a "reply brief" to appellees' answer,
appellees filed a motion for summary judgment. Huebner filed a
memorandum in opposition to the summary judgment motion. On
December 5, 1994, the court of appeals granted appellees'
motion for summary judgment and denied the writ.
The cause is now before this court upon an appeal as of
right.

David A. Huebner, pro se.
Ronald C. Parsons, Village of West Jefferson Law Director, for
appellees.

Per Curiam. In order to be entitled to a writ of
mandamus, Huebner must establish that (1) he has a clear legal
right to have the charter amendment initiative submitted to the
electorate, (2) appellees possess a clear legal duty to
provide for certification of the proposed charter amendment to
the electorate, and (3) Huebner has no adequate remedy in the
ordinary course of law. Morris v. Macedonia City Council
(1994), 71 Ohio St.3d 52, 54, 641 N.E.2d 1075, 1077.
Huebner asserts in his various propositions of law that the
court of appeals erred in granting summary judgment in favor of
appellees and failing to issue the requested writ. The court
of appeals determined that Huebner's initiative petition did
not contain sufficient signatures requiring certification of
the proposed charter amendment to the board of elections under
Sections 8 and 9, Article XVIII of the Ohio Constitution and
Section 16.01, Article XVI of the West Jefferson Village
Charter.
Section 7, Article XVIII of the Ohio Constitution
authorizes municipal corporations to adopt and amend a home
rule charter, and Sections 8 and 9 of Article XVIII prescribe
the procedures for adopting and amending a charter. Morris,
supra, 71 Ohio St.3d at 54, 641 N.E.2d at 1077, citing State ex
rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio
St.3d 334, 346, 617 N.E.2d 1120, 1122. Section 9 of Article
XVIII incorporates the requirements of Section 8, and "upon
petitions signed by ten per centum of the electors of the
municipality setting forth any such proposed amendment"
requires the legislative authority of any municipality, e.g.,
village council, to "forthwith" authorize an election on the
charter amendment issue. Morris, supra. Section 16.01,

Article XVI of the West Jefferson Village Charter similarly
provides that "[c]ouncil *** upon petition signed by not less
than ten percent (10%) of the electors of the Municipality
setting forth any proposed amendment to this Charter *** shall
submit such proposed amendment to the electors in accordance,
in each instance, with the provisions of the [C]onstitution of
Ohio and this Charter." An "elector" is a person having the
qualifications provided by law to entitle that person to vote.
R.C. 3501.01(N).
Appellees and the court of appeals determined that the ten
percent of electors specified in Sections 8 and 9, Article
XVIII of the Ohio Constitution and Section 16.01, Article XVI
of the West Jefferson Village Charter referred to all
registered voters of the village. Huebner claims that this
determination is erroneous based on Section 1g, Article II,
Ohio Constitution, R.C. 3519.22, and R.C. 731.28. However,
Section 1g, Article II, Ohio Constitution and R.C. 3519.22
apply only to statewide initiative and referendum petitions.
See, e.g., State ex rel. Home Fed. S. & L. Assn.of Hamilton v.
Moser (1974), 40 Ohio St.2d 94, 69 O.O.2d 442, 320 N.E.2d 672,
paragraph one of the syllabus; Dillon v. Cleveland (1927), 117
Ohio St. 258, 158 N.E. 606, paragraph two of the syllabus; cf.
State ex rel. Spadafora v. Toledo City Council (1994), 71 Ohio
St.3d 546, 549, 644 N.E.2d 393, 395 (court concedes R.C.
Chapter 3519 involves statewide intiative and referendum
petitions, but holds that city council may invalidate
signatures affixed to municipal referendum part-petition where
part-petition violates R.C. 3519.06[C] on its face). Further,
to the extent that the foregoing provisions, as well as R.C.
731.28, conflict with the charter amendment provisions set
forth in Sections 8 and 9, Article XVIII of the Ohio
Constitution, they are inapplicable. State ex rel. Semik,
supra, 67 Ohio St.3d at 336, 617 N.E.2d at 1122; State ex rel.
Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d
17, 22, 577 N.E.2d 645, 648-649.
Huebner's main contention below and on appeal is that
Sections 8 and 9, Article XVIII of the Ohio Constitution and
Section 16.01, Article XVI of the West Jefferson Village
Charter should be construed in conjunction with Section 14 of
Article XVIII, which provides:
"All elections and submissions of questions provided for
in this article shall be conducted by the election authorities
prescribed by general law. The percentage of electors required
to sign any petition provided for herein shall be based upon
the total cast at the last preceding general municipal
election." (Emphasis added.)
The Home Rule Amendment to the Ohio Constitution
authorizes municipalities "to exercise all powers of local
self-government and to adopt and enforce within their limits
such local police, sanitary and other similar regulations, as
are not in conflict with general laws." Section 3, Article
XVIII, Ohio Constitution. Municipal elections are matters of
local self-government and may be the subject of a charter
provision. State ex rel. Bedford, supra, 62 Ohio St.3d at 19,
577 N.E.2d at 646. Therefore, to the extent that Section
16.01, Article XVI of the West Jefferson Village Charter
conflicts with Section 14, Article XVIII of the Ohio

Constitution, the Home Rule Amendment provides that the charter
provision controls. Although the court of appeals did not base
its decision on the foregoing, it supplies an independent basis
to affirm its decision.
Instead of contending that the charter provision is
controlling under the village's home rule powers, appellees
argued that Section 16.01, Article XVI of the West Jefferson
Village Charter is in accordance with Sections 8 and 9, Article
XVIII of the Ohio Constitution.
Absent any provision in the Ohio Constitution regarding
the interpretative issues involved, we may apply the general
laws regarding statutory interpretation. See State ex rel.
Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio
St.3d 597, 600, 622 N.E.2d 329, 331 (plurality opinion applying
general provisions regarding statutory interpretation to
analysis of municipal charter); see, also, State ex rel. Paluf
v. Feneli (1994), 69 Ohio St.3d 138, 142, 630 N.E.2d 708, 711.
R.C. 1.51 provides:
"If a general provision conflicts with a special or local
provision, they shall be construed, if possible so that effect
is given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that
the general provision prevail." See, also, State ex rel.
Dublin Securities, Inc. v. Ohio Div. of Securities (1994), 68
Ohio St.3d 426, 429-430, 627 N.E.2d 993, 996; United Tel. Co.
of Ohio v. Limbach (1994), 71 Ohio St.3d 369, 372, 643 N.E.2d
1129, 1131.
The court of appeals determined that Section 9, Article
XVIII of the Ohio Constitution is a special provision
concerning charter amendments and thus controls over the
general provision of Section 14, Article XVIII, Ohio
Constitution. We agree. Section 9 specifically addresses
petitions on proposed charter amendments. Conversely, Section
14 generally refers only to petitions provided for in Article
XVIII. Section 9 states that charter amendments must be
submitted to the electors "upon petitions signed by ten per
centum of the electors of the municipality," which refers to
all registered voters, not simply those electors who voted in
the last preceding general election. Since Sections 9 and 14
are irreconcilably in conflict, the court of appeals properly
held that Section 9 controls. Section 14 is thus inapplicable
to proposed charter amendments.
Consequently, because Huebner's petition contained only
208 valid signatures when he needed at least 228, appellees
were under no duty to certify the proposed charter amendment,
based on both the applicable charter provision and Section 9,
Article XVIII of the Ohio Constitution. Accordingly, the
judgment of the court of appeals is affirmed.
Judgment affirmed.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., Wright and Cook, JJ., dissent.

Moyer, C.J., dissenting. I respectfully dissent from
the judgment affirming the denial of the writ of mandamus. The
majority initially relies on the Home Rule Amendment to hold

that a municipal charter provision controls over a conflicting
provision of the Ohio Constitution. However, because the
provisions of a home-rule charter derive their authority from
the Ohio Constitution, where charter provisions are contrary to
constitutional provisions, the Constitution prevails. State ex
rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio
St.3d 334, 336, 617 N.E.2d 1120, 1122, citing State ex rel.
Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E.
455, 457 ("'*** the Constitution being the higher authority, it
must be regarded, and the charter must be ignored. The
paramount authority must prevail over the subordinate
authority.'"); see, also, Bazell v. Cincinnati (1968), 13 Ohio
St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the
syllabus ("By reason of Sections 3 and 7 of Article XVIII of
the Ohio Constitution, a charter city has all powers of local
self-government except to the extent that those powers are
taken from it or limited by other provisions of the
Constitution ***." Emphasis added.).
The majority opinion's sole citation in support of its
novel proposition is State ex rel. Bedford v. Cuyahoga Cty. Bd.
of Elections (1991), 62 Ohio St.3d 17, 577 N.E.2d 645.
However, State ex rel. Bedford, supra, expressly held that a
municipal charter provision that was contrary to the process
provided by the Ohio Constitution for charter amendments was
invalid. Therefore, the Home Rule Amendment does not supply an
"independent basis" to affirm the court of appeals' judgment,
and neither appellees nor the court of appeals stated otherwise.
As to the court of appeals' rationale that the writ should
be denied on the basis that Section 9, Article XVIII of the
Ohio Constitution is a special provision concerning charter
amendments and thus controls over the general provision of
Section 14, Article XVIII, Ohio Constitution, it is only where
a conflict is deemed irreconcilable that R.C. 1.51 mandates
that one provision shall prevail over another. United Tel. Co.
of Ohio v. Limbach (1994), 71 Ohio St.3d 369, 372, 643 N.E.2d
1129, 1131. All provisions which relate to the same general
subject matter must be read in pari materia, and in construing
these provisions together, courts must harmonize and give full
application to all provisions "unless they are irreconcilable
and in hopeless conflict." Johnson's Markets, Inc. v. New
Carlisle Dept. of Health (1991), 58 Ohio St.3d 28, 35, 567
N.E.2d 1018, 1025.
Here, the court of appeals erred in effectively
determining that Sections 9 and 14, Article XVIII of the Ohio
Constitution are irreconcilable. Both provisions relate to the
same general subject matter, i.e., submission of issues to the
electorate. While it is true that Section 9 addresses more
specifically the issue of charter amendments, Section 14
manifestly provides that "[t]he percentage of electors required
to sign any petition provided for herein shall be based upon
the total vote cast at the last preceding general municipal
election." (Emphasis added.) The word "herein" refers to the
phrase "in this article" from the first sentence of Section 14,
Article XVIII. Sections 8 and 9 are two of the provisions in
Article XVIII which refer to a percentage of electors required
to sign a petition.
Accordingly, the "ten per centum of electors" specified in

Sections 8 and 9 must, under Section 14, be "based upon the
total vote cast at the last preceding municipal election."
(Emphasis added.) By thus reading Sections 8 and 9 in pari
materia with Section 14, the petition must contain ten percent
of the total vote cast at the last preceding general municipal
election. There is no conflict between the provisions.
Rather, Section 14 merely clarifies what the "ten percentum of
electors" referred to in Sections 8 and 9 is "based upon."
This construction comports with our duty to harmonize and give
full application to all of these pertinent provisions since
they are neither irreconcilable nor in "hopeless conflict." Id.
Further, we have recently so applied Section 14 in cases
involving charter amendments under Section 9, Morris v.
Macedonia City Council (1994), 71 Ohio St.3d 52, 641 N.E.2d
1075, and charter commission issues under Section 8. State ex
rel. Concerned Citizens for More Professional Govt. v.
Zanesville City Council (1994), 70 Ohio St.3d 455, 457, 639
N.E.2d 421, 423. The Secretary of State's preprinted form for
a petition to submit a proposed charter amendment refers to
both Sections 9 and 14 of Article XVIII and states that it is
"[t]o be signed by ten per cent of the electors based on the
total vote cast at the last preceding General Municipal
Election." See, also, Baldwin's Ohio Revised Code Annotated
(1994) 518, Editor's Comment to Section 14, Article XVIII, Ohio
Constitution ("This section provides that any election held
under the Home Rule Amendment is to follow normal election
procedures, and that the percentage of signatures required on
any petition circulated under the Amendment is to be calculated
on the total vote cast at the last general election in the
municipality. Article XVIII specifically provides for
petitions or elections in [Section] 2 (adoption of alternative
form of municipal government; see R.C. Ch. 705), [Section] 5
(referendum on acquiring or operating utility), [Section] 8
(frame and adopt charter), and [Section] 9 (amendment of
charter.)"). 1
The court of appeals based its determination that Section
9 prevails over Section 14 partly because Section 9 was last
amended in 1971, whereas Section 14 has not been amended since
its enactment in 1912. The court of appeals concluded that
Section 9 was thus a later expression of the will of the
electors. See Vollmer v. Amherst (1940), 65 Ohio App. 26, 32,
18 O.O. 266, 269, 29 N.E.2d 379, 382. However, as previously
noted, the provisions are not irreconcilable. Further, both
Sections 9 and 14, Article XVIII of the Ohio Constitution were
adopted at the 1912 Constitutional Convention, and the 1971
amendment to Section 9 merely permitted notice of proposed
charter amendments to be given by newspaper advertising in lieu
of mailing. See Am.Sub.S.J.R. No. 31, 133 Ohio Senate Journal
(1969-1970) 1508. The amendment had nothing to do with the
provisions pertinent to this cause.
Therefore, since Section 14 applies in conjunction with
Sections 8 and 9 of Article XVIII, Ohio Constitution, and the
number of electors who voted at the last preceding general
municipal election was 482, Huebner needed only forty-nine
valid signatures to have the issue certified by appellees to
the board of elections. Since the initiative petition filed by
Huebner contained 208 valid signatures, the petition contained

a sufficient number of valid signatures. Appellees and the
court of appeals erred in concluding otherwise.
Accordingly, the judgment of the court of appeals should
be reversed and the writ granted to compel appellees to
certify the proposed charter amendment to the board of
elections for placement, pursuant to Section 8, Article XVIII,
Ohio Constitution, on the ballot "at the next regular municipal
election if one shall occur not less than sixty nor more than
one hundred and twenty days after its passage; otherwise it
shall provide for the submission of the question at a special
election to be called and held in the time aforesaid."
Wright and Cook, JJ., concur in the foregoing dissenting
opinion.

FOOTNOTE:
1 Since Sections 5, 8, and 9, Article XVIII, Ohio
Constitution all refer to "ten per centum of the electors of
the municipality," a holding that Section 14 of Article XVIII
does not apply to those provisions even though its clear
language indicates its applicability to "any petition provided
for" in Article XVIII would render Section 14 meaningless.
This unreasonable result could not have been intended by the
framers of the 1912 Ohio Constitution.