REFERENDUM WITH REFERENCE TO THE OPENING OF A NEW STREET.

Court of Appeals for Hamilton County.

#### Laura B. McFarlan v. City of Norwood and Sanford A. Headley, Solicitor for Said City.

Decided, June 19, 1916.

*Municipal Corporations*— Injunction *Prayed Against Opening of a New Street*— Passage *of an Ordinance to Appropriate the Land Necessary is an Implied Repeal of a Previous Appropriating Ordinance*— Referendum *should he on the Ordinance and Not on the Preliminary Resolution.*

1. In proceedings for the appropriation of land by a municipality, the ordinance to appropriate is the controlling act, and it and not the preliminary resolution is the measure on which a referendum should be taken where the referendum vote of the people is desired.

2. Where two or more ordinances have been passed by a municipal council appropriating strips of land to open a street between subtantially the same points, such strips not being identical but in part overlaying each other, the fact that the earlier ordinance has not been expressly repealed would not be sufficient reason to prevent proceedings under the last ordinance.

*Hunt, Bennett <& Utter,*foT plaintiff.

O. *F. Divyer,*Solicitor of Norwood, and *Sanford A. Headley,*contra.

Jones (Oliver B.), J.

This is an action heard on appeal, wherein plaintiff, as the owner of certain real estate in the city of Norwood under-a lease with the privilege of purchase, seeks to enjoin the city of Norwood from proceeding to appropriate a strip of land through same for the purpose of opening a street called Crown avenue, between Station avenue and the Montgomery pike.-

A petition has been filed by the city of Norwood in the court of common pleas against this plaintiff and the owner of the fee of said land, asking the court to cause a jury to be impaneled *34to make inquiry into and assess the amount of compensation to be paid by the city of Norwood for the strip of land appropriated by an ordinance of said city passed November 10, 1915, and that upon payment of the amount so assessed possession of the property so appropriated be awarded to said city of Norwood.

It is sought in this proceeding to secure a permanent injunction against the city from maintaining and prosecuting said action in the court of common pleas. Such proceedings in injunction have been held to be a proper method of procedure, rather than seeking to make a defense in the appropriation proceeding itself. • *Railroad*v. *Youngstown,*5 C.C.(N.S.), 332; *Railroad*v. *Greenville,*69 O. S., 487.

One of the principal grounds upon which this action is based by plaintiff is that numerous resolutions and ordinances seeking to open Crown avenue have been from time to time passed by the city of Norwood, which remain unrepealed upon its records. These resolutions and ordinances provided for the opening of Crown street or avenue on similar but not on identical lines with that now sought to be carried out.

The first was an ordinance to condemn and appropriate, passed by the council of the village of Norwood, August 11, 1892; then a resolution of the city of Norwood dated July 18, 1904, declaring the intention of said city to appropriate certain land for the opening and extending of Crown avenue. This was followed by an ordinance of February 20, 1905, appropriating a similar strip for the same purpose. These ordinances and resolutions seem to have been repealed by a resolution or ordinance of October 16, 1905; and December 7, 1908, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate a strip of land through the same property for the purpose of opening and extending said Crown avenue from Station avenue to Montgomery avenue, and this resolution was followed by an ordinance to appropriate the same strip of land, passed July 6, 1909. On June 21, 1915, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate for street purposes for the extension of Crown avenue a strip of land fifty feet wide, being part of that owned by *35plaintiff; and on November 10,1915, an ordinance to appropriate tbe same property was passed, with instructions to tbe solicitor to apply to a court of competent jurisdiction to have a jury impaneled to make inquiry and assess the compensation to be paid for said property. The proceeding which it is sought' to enjoin was brought under this last named resolution and ordinance, by the filing of the petition therein on November 24, 1915, in the court of common pleas, as above stated. Afterwards, on December 20, 1915, the city council of Norwood passed an ordinance repealing the resolution of December 7, 1908, and on the same day passed another ordinance repealing the ordinance of July 6, 1909.

Plaintiff contends that the condemnation proceedings in the common pleas court should be enjoined because of the conflicting resolutions and ordinances of the city of Norwood, which provided for several different strips of land which in part overlay each other and whose lines were not the same, and that the solicitor had no power to proceed under the last ordinance until all the previous ordinances and the preceding resolutions had been duly repealed; and that the repeal under the ordinance of December 20, 1915, of the previous resolution of December 7, 1908, and ordinance of July 6, 1909, would not be effective because passed after the filing of the petition in the common pleas court under the final appropriation ordinance.

We do not deem these objections to the proceeding important. It is true that it was held in *Grant*v. *Hyde Pewit,*67 O. S., 166, that condemnation proceedings begun under municipal legislation could not be affected by legislation subsequent to the filing of the petition in such proceedings. In that case the village of Hyde Park undertook to limit the condemnation proceedings with reference to a particular grade of the street about to be opened. In the instant ease, granting tliat the subsequent repealing ordinance might not be considered, the solicitor had brought his proceeding under the last condemnation ordinance, that of November 10, 1915. While at that time the ordinance of July 6, 1909, had not been explicitly repealed, in our opinion the passage of the later ordinance constituted an implied repeal. *36But even if that is not the case, the solicitor was at least authorized to proceed under the last ordinance, and the fact that there might be a valid subsisting ordinance for some other condemnation upon the books, would not be a reason for staying proceedings under the last ordinance.

The other and main reason urged on behalf of plaintiff for restraining further proceedings in the condemnation ease is that a referendum vote, upon the ordinance to appropriate under which such proceedings are brought; has been sought and unless interfered with will be held at the next general election.

An act providing for the initiative and referendum in municipal corporations was passed by the General Assembly May 31, 1911 (102 O. L., 521), although at that time no distinct provision for it appeared in the Constitution. The amendments to Article II of the Constitution adopted September 3, 1912, made detailed provision for initiative and referendum as part of the legislative power of the state, and in Section 1/ reserved similar powers to the people of each municipality to be exercised “in the manner now or hereafter provided by law. ’ ’ In this way the validity of the act found in 102 Ohio Laws, 521, was recognized, and the amendments of Sections 4227-2 and 4227-3 (103 O. L., 211; 104 O. L., 239) were authorized.

By virtue of this legislation the people of the municipality become, with its council, an'essential part of the law-making power, and by the referendum may participate in all municipal legislation. Such participation is controlled and directed by this provision of the Constitution and these statutes *(Shyrock*v. *Zanesville,*92 O. S., 375); and the rights thus given to the people should be fully upheld and protected by the courts.

On December 9, 1915, there was duly filed with the auditor of the city of Norwood a referendum petition signed by more than ten per cent, of the electors of the city of Norwood, ordering that said ordinance to appropriate land for the extension of Crown avenue, passed November 10, 1915, be submitted to the electors of the city of Norwood for their approval or rejection. It is agreed that such referendum petition was duly filed within the time and in the manner and form provided by law for refer*37endum petitions as to said ordinance, and that a certification thereof was duly made to the deputy supervisors of election for Hamilton county, Ohio, for the holding of such referendum control by legislative action, such powers to be exercised in November, 1916.

The Constitution of Ohio as amended September 3, 1912, provides in Article II, Section 1/, as follows:

> “The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative actions; such powers shall be exercised in the manner now or hereafter provided by law. ’ ’

At the time of the adoption of this section of the Constitution the act of May 31, 1911 (102 O. L., 521), in Section 2, provided as follows:

> “Any ordinance, resolution or other measure of a municipal corporation, granting a franchise creating a right, involving the expenditure of money or exercising any other power delegated to such municipal corporation by the General Assembly, shall be submitted to the qualified electors for their approval or rejection in the manner herein provided, if within thirty days after the passage or adoption of such ordinance, resolution or measure by the council, there be filed with the clerk of such municipal corporation, a petition or petitions signed by fifteen per cent, of the qualified electors of such municipal corporation,” etc.

This act was carried into the General Code as Section 4227-2; and as such was amended April 17, 1913 (103 O. L., 211), the first paragraph being as follows:

> “Any ordinance or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been filed with the mayor of such municipal corporation, except as hereinafter provided. ’ ’

And by the same act Section 4227-3 was amended so that the first paragraph read as follows (103 O. L.; 212) :

> *38“Whenever the council of any municipal corporation is by law required to pass more than one ordinance or other measure to complete the legislation necessary to make and pay for any public improvement, the provisions of this act shall apply only to the first ordinance or other measure required to be passed, and not to any subsequent ordinances and other measures relating thereto.”

On February 16, 1914, Section 4227-2 was again amended (104 O. L., 239), but the changes made therein are not material to the matter under consideration.

It is admitted by the solicitor of the city of Norwood that the matter of appropriating land for the opening of Crown avenue is a subject which, under proper proceedings, should be submitted to a referendum of the voters of the city, but it is contended by him that such a referendum has already been had under the resolution of council passed June 2, 1915, declaring its intention to appropriate for street purposes for the extension of Crown avenue and, therefore, under the provisions of Section 4227-3 a referendum of the ordinance of November 10, 1915, to appropriate said land for the extension of Crown avenue can not be had.

It is agreed that a referendum election upon said resolution of June 21, 1915, was held at the regular November election in 1915, resulting in a majority vote in favor thereof, the question submitted being, “Shall the resolution of the city of Norwood entitled ‘a resolution declaring its intent to appropriate for street purposes certain real estate for the extension of Crown avenue, passed June 21; 1915;’ be approved.”

It is further urged that one of the signers under the referendum petition on said resolution was T. J. McFarlan, the husband of the plaintiff, Laura B. McFarlan, and the solicitor claims that because of that fact the plaintiff is estopped from bringing this action. There is nothing in the proof submitted, nor in the record, to show that T. J. McFarlan in any way represented the plaintiff in regard to said referendum, or, for that matter, in regard to this property.

Plaintiff, however, contends that the resolution of council declaring its intent, was merely a preliminary resolution and was *39not the proper subject of a referendum vote, and that therefore the referendum election upon it held in November, 1915, was without effect and in no way precludes or interferes with the referendum election which has been petitioned for to be held November, 1916, upon the ordinance to appropriate. This requires a consideration of the law with reference to the appropriation of real estate by municipal corporations.

The general appropriation laws as found in the Revised Statutes appeared in Chapter 3, Division 7, Title XII, and Section 2235, R. S., provided that the council should order by yea and nay vote a resolution prepared declaring such intent and defining the purpose of the appropriation, and setting forth a pertinent description of the property. Immediately upon the introduction of such resolution and before its passage the mayor was required to cause written notice to be given to the owners or their agents. of the property sought to be appropriated, such notice to be served by an officer and return made in the manner of service of summons in civil actions, and in case neither owner nor agent could be found notice by publication was provided for. No action was to be taken upon the resolution until such notice was given and then upon its passage the yeas and nays were taken; and after its passage provision was made for an application to the court to determine the amount to be paid for the property so taken.

In the street chapter, however, Chapter 13, Division 8, Title XII, Section 2642, R. S., provided as follows:

> “When it is deemed necessary by the council of any municipal incorporation to open, extend, straighten, narrow, or widen any street, alley or public highway within the limits of such corporation, the council shall provide by ordinance for the same; such ordinance shall briefly and' in general terms describe the property, if any, to be appropriated for such purposes; and the proceeding for such appropriation shall be as provided in chapter three, division seven, of this title.”

Under the law as it then stood the courts held that the proper method to appropriate property for- street purposes was hy ordinance, and that a preliminary resolution as required under *40R. S. 2235 was not necessary. *Tyler*v. *Columbus,*6 C. C., 224; *Krumberg*v. *Cincinnati,*29 O. S., 69; *Caldwell*v. *Carthage,*49 O. S., 334; *Longworth*v. *Cincinnati,*23 Bul., 100; *Strauss*v. *Cincinnati,*24 Bul., 422.

The change in the municipal code which has been carried into the General Code of Ohio has retained in Chapter 3, Division 3, Title XII, Section 3715 (which is practically the same as R. S. 2642), its language being as follows:

G. C., Section 3715. “When it deems it necessary the council may open, straighten, alter, divert, narrow or widen, any street, alley or public highway within the limits of the corporation. The council shall provide by ordinance therefor, which shall briefly, and in general terms, describe the part, if any, of the street, alley or public highway to be abandoned by reason of such change thereof, and the property, if any, to be appropriated for such purposes. The proceeding for such appropriation shall be as provided for the appropriation of property for other municipal purposes in this title.”

The provision in the appropriation chapter, and Chapter 1, Division 3, Title XII, instead of continuing merely a resolution of intent to appropriate, has provided in Section 3679 for passage of such a resolution declaring the intent to appropriate of which one reading only is necessary under Section 3680, and after its passage notice is required to be served; and then after notice, council passes an ordinance which requires a two-thirds vote directing such appropriation to proceed. It is not until after the passage of the ordinance to appropriate that the solicitor proceeds to make application to the court. The passage of the ordinance effects the appropriation. The proceeding in court is merely to determine the compensation to be paid the owners. Under the present form of the statute the resolution declaring the intent is merely preliminary. The municipality is not committed to the act of appropriation until the passage of the ordinance.

The law in regard to street improvement furnishes, by analogy, some light upon this question. In making a street improvement the first preliminary step provided for is a resolution de- . daring the necessity of the improvement (G. C. 3814; R. S. 2304), *41and after service of notice, in order that property owners might be advised and might file any claims for damages they might suffer by reason of the improvement, if the council decide to proceed with the improvement it passes an ordinance for the purpose. (G. C. 3825; R. S. 2316.)

In the case of *Cincinnati*v. *Seasongood,*46 O. S., 296, it was determined that the law in force at the time-of the passage of the ordinance to -improve fixed the rights and liabilities of the owners of the property and of the city in regard to the manner of the assessment.

Upon the same reasoning it should be held that the ordinance to appropriate is now the controlling feature of the legislation for the opening or extension of a street; and that the resolution declaring the intent, which precedes it under the present statute, must be deemed merely preliminary. It has been held in *Long*v. *City of Portland,*98 Pac. (Ore.), 1111, that the referendum as found in Oregon applying to municipal legislation does not include preliminary matters or transient orders. If a referendum vote is to be taken upon the question of the opening of a particular street, the ordinance to appropriate is the step which should be submitted to a referendum, and any referendum taken upon the resolution or previous preliminary steps would not prevent such referendum upon the ordinance. *In re Initiative Petition No. 2, New Jerusalem Proposition,*109 Pac. (Okla.), 823.

This conclusion is strengthened by the wording that has been used in the different forms of the referendum statute. It will be observed in the original form of Section 4227-2 as found in 102 O. L., 521, the word “resolution” was included in addition to “ordinance or other measure” throughout the section in its different parts, while in the statute as found in 103 O. L., the words “ordinance or other measure” are used almost entirely to the exclusion of the word “resolution;” and in the act of 104 O. L., 238, the word “resolution” does not appear. Section 4227-3, upon which defendant relies, subsequently uses the word “ordinance” again and again. And as the case of *Krumberg*v. *Cincinnati*and the other cases construe G. G. 3715 as requiring an ordinance before a street can be opened, it would seem that *42it is the “ordinance” rather than the “resolution or any other measure” that should be submitted to a referendum. Indeed, the action of council is usually either by resolution or ordinance, although it may act by motion or by-law or possibly by other form of procedure. Great difficulty is frequently experienced in determining just whether a particular action is a resolution or an ordinance. In' determining this question we must rely generally upon the form of the statute and the definition there provided.

The evidence in this ease shows that while a favorable referendum vote was taken upon the resolution, that a referendum petition has been duly filed under an ordinance to appropriate, has been received by the proper authorities and filed with the election board, and will be voted upon at the next election. To permit this election to proceed will cause only a few months’ delay, and considering that the project of opening this street has been pending in the municipality since 1892, and has never reached the court until in this present proceeding, although numerous resolutions and ordinances stood for years unrepealed on the village record, it would seem better to permit the election to proceed and thus test the desire of the people under the referendum vote, which appears to be taken at the proper stage on the municipal legislation. To hold otherwise would curtail rather than extend the right of referendum which has been obtained for the people under the recent amendment to the Constitution and the legislation had thereunder, which should be favored rather than restricted.

Judgment will therefore be entered for the plaintiff as prayed in the petition.

Gorman, J., concurs; Jones (E. H.), P. J., dissents in a separate opinion.

Jones (E. TI.), P. J.,

dissenting.

The question here is one of statutory construction. The words “ordinance or other measure” found in Sections 4227-2 and 4227-3, G. C., include the resolution which we all agree is the first step in a proceeding to condemn property for street purposes.

*43The electors of the city of Norwood have voted on the resolution adopted by council as the first legislative action in the Crown avenue matter, and there is no authority in law for a vote on the ordinance or any subsequent measure in connection with that improvement. On the contrary, Section 4227-3, G. C., expressly forbids more than one vote and that on the *“first ordinance or other measure required to he passed.”*

If there can be any doubt or ombiguity about these sections, 4227-2 and 4227-3, when standing,alone, it is removed when we study their language, and especially that of the latter in its application to the initiative provision found in Section 4227-1. This section provides for an initiative petition proposing “an ordinance or other measure” to be submitted for approval or rejection. Section 4227-3 says that—

> “the provisions of this act shall apply only to the first ordinance or other measure required to be passed and not to any subsequent ordinances and other measures relating thereto.”

As the resolution is a necessary step and the first step required to be taken in a street matter such as this, it follows that it alone would be initiated, and it only submitted to the voters; and that after it was successful at the polls all other necessary measures would follow without initiative or referendum.

Under the law as construed by the majority opinion however, the matter could again be brought before the voters at a subsequent election by a referendum vote on the ordinance notwithstanding the fact that the people had already ordered the im- ’ provement by a majority vote. In my opinion this is what the decision in this ease leads to, and I am quite sure such is not the law, and that in a proceeding to open a city street the initiative and referendum provisions of our- code only operate upon and apply to the preliminary or first required step, viz., the resolution.