State ex rel. Walter v. Edgar

Per Curiam. R.C. 731.28 provides, in part: “When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, certify the text of the proposed ordinance or measure to the board of elections. * * *” (Emphasis added.) Respondent contends she is not required to certify the proposals because they would be unconstitutional if approved. This argument is without merit. It is well-settled that any claim alleging the unconstitutionality of a proposal prior to its approval is premature. State, ex rel. Cramer, v. Brown (1983), 7 Ohio St. 3d 5, 6, citing Pfeifer v. Graves (1913), 88 Ohio St. 473, paragraph five of the syllabus; Weinland v. Fulton (1918), 99 Ohio St. 10; Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, paragraph two of the syllabus; State, ex rel. Marcolin, v. Smith (1922), 105 Ohio St. 570; State, ex rel. Kittel, v. Bigelow (1941), 138 Ohio St. 497 [21 O.O. 380], paragraph one of the syllabus. We also reject respondent’s contention that the proposal concerning the delinquent utility account is not a question which “* * * municipalities may now or hereafter be authorized by law to control by legislative action” and thus, is not subject to the power of initiative as set forth in Section If Article II of the Ohio Constitution. R.C. 715.06 clearly grants to a municipality the general power to regulate all aspects of its utility companies. No claim with regard to the signatures or any other aspect of the petitions having been made which would obviate respondent’s duty under R.C. 731.28, the writ prayed for is allowed. Writ allowed. Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes, C. Brown and J.P. Celebrezze, JJ., concur.