303 N.E.2d 74
No. 73-295Supreme Court of Ohio.
Decided October 17, 1973.
Municipal corporations — Organization — Legislative authority of city — Powers — R.C. 731.06 — Division of city into wards — Ordinance enacted subdividing city — R.C. 731.27 — Veto by mayor — Procedure — Failure of council to reconsider and approve — Effect — Director of public service to make subdivision, when — Declaratory judgment.
1. The legislative authority of a city shall act by ordinance to subdivide the city into wards, equal in number to the members of the legislative authority to be elected from wards, within 90 days after the first day of October of the year following the decennial census year. R.C. 731.06.
2. In the event that the mayor of a city disapproves an ordinance, passed within the required 90-day period by a city council, subdividing the city into wards pursuant to the provisions of R.C. 731.06, the procedure to be followed with regard to the return of such disapproved ordinance to council by the mayor and council’s reconsideration of such disapproved ordinance is that provided in R.C. 731.27.
3. Where the legislative authority of a city passes an ordinance which subdivides the city into wards in accordance with the provisions of R.C. 731.06(A) within the time limit established by R.C. 731.06(A)(1), and where the ordinance is disapproved by the mayor and is returned to council with his reasons for such disapproval, and where the council fails to reconsider and approve that ordinance by a two-thirds vote of all the members elected within a reasonable time after the time when the council is permitted by R.C. 731.27 to reconsider that ordinance and act to approve it notwithstanding the objections of the mayor, then the director
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of public service of the city shall make such subdivision of the city into wards pursuant to R.C. 731.06(B).
APPEAL from the Court of Appeals for Richland County.
This is a declaratory judgment action filed by the Richland County Board of Elections in the Common Pleas Court of Richland County on May 22, 1972, seeking a judicial determination as to which, if any, of four plans for subdividing the city of Mansfield into wards should be given effect in future municipal elections. The complaint joined as defendants the city of Mansfield; Robert S. Lemley, a former mayor; Paul L. White, a former public service director; Richard A. Porter, the mayor; and Peter A. Zimmerman, the public service director.
R.C. 731.06 requires a new ward subdivision for the city to be made after the decennial census year of 1970. Pursuant to that statute, city council passed an ordinance, No. 71-374, on December 21, 1971, providing a new city ward subdivision plan.
Mayor Lemley disapproved that ordinance and returned it to the council, with the reasons for his disapproval.
On December 31, 1971, White, the director of public service, promulgated and filed with the board of elections his own subdividing plan, which was different from the plan enacted by council ordinance. White’s plan was rejected by the board of elections as improperly filed.
On January 5, 1972, White promulgated and filed with the board of elections another plan for subdividing the city into wards, which was substantially identical to his first plan filed on December 31, 1971.
On January 21, 1972, Zimmerman, who had been appointed public service director by Mayor Porter after he legally became mayor on January 1, 1972, promulgated and
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filed with the board of elections a plan of subdivision of the wards of the city.
The Common Pleas Court held that the plan filed on December 31, 1971, by Public Service Director White was the valid plan to be followed by the board of elections. Porter and Zimmerman appealed that judgment and the city, Lemley and White defended, as appellees. The Court of Appeals reversed the judgment of the Common Pleas Court and held that the plan filed on January 21, 1972, by Public Service Director Zimmerman was the valid plan required to be given legal effect.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. William F. McKee, prosecuting attorney, for Richland County Board of Elections.
Mr. Robert K. Rath, city solicitor, for appellants.
Messrs. Ryan, Cole Brown, for appellees.
O’NEILL, C.J.
This case involves the application of R.C. 731.06 and R.C. 731.27 to the above-stated facts.
R.C. 731.06, in pertinent part, provides:
“(A) The legislative authority of a city shall subdivide the city into wards, equal in number to the members of the legislative authority to be elected from wards, within ninety days after:
“(1) The first day of October of the year following the decennial census year;
“* * *
“(B) If the legislative authority fails to make such subdivision within the time required, it shall be made by the director of public service.
“* * *
“(F) Action of the legislative authority to divide the city into wards shall be taken by ordinance and shall be effective for the first municipal primary election occurring at least one hundred fifty days after the passage of the ordinance.” (Emphasis added.)
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It is undisputed that the Mansfield city council acted by ordinance to subdivide the city into wards in accordance with the new census results, within 90 days after the first day of October of the year following the decennial census year (1970) pursuant to the provisions of R.C. 731.06.
After the mayor disapproved the subdividing ordinance passed by council, the procedure with regard to such a disapproved ordinance is controlled by R.C. 731.27, which provides, in pertinent part:
“Every ordinance * * * of a legislative authority of a city shall, before it goes into effect, be presented to the mayor for approval. * * * If he does not approve it, he shall, within ten days after its passage * * * return it, with his objections, to the legislative authority, or, if it is not in session, to the next regular meeting thereof * * *. When the mayor disapproves an ordinance * * * and returns it with his objections, the legislative authority may, after ten days, reconsider it, and if such ordinance * * * upon such reconsideration, is approved by a two-thirds vote of all the members elected, it shall then take effect as if signed by the mayor.” (Emphasis added.)
Since it is agreed that the mayor disapproved the subdividing ordinance on December 22, 1971, while the council was not in session, and it is not disputed that the next regular meeting of council was on January 4, 1972, under the provisions of R.C. 731.06 the mayor was required to return the ordinance to council on January 4, 1972, with his objections. Under the provisions of that statute, the council “after ten days” could reconsider it, which means that on January 15, 1972, and thereafter, council could reconsider the ordinance.
The time, January 4, 1972, when the mayor was required to return the ordinance to council with his objections had not yet been reached on the calendar when the public service director attempted to promulgate and make effective his own plan on December 31, 1971, and the time, January 15, 1972, when, under the statute, council could reconsider the ordinance had not been reached on the calendar
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when White attempted to promulgate and file his second plan with the board of elections. White had been removed as public service director on January 1, 1972, by Mayor Porter, who took his oath of office as mayor that day. White’s removal occurred prior to the time he attempted to file his purported second subdividing plan.
Neither of the two subdivision plans filed by White, the public service director, is a legally valid and effective plan because after council had acted, pursuant to the provisions of R.C. 731.06(A)(1) and (F) by the passage of an ordinance, within the required time, to subdivide the city into wards, and the mayor had disapproved the ordinance, the public service director was not authorized to make the subdivision pursuant to R.C. 731.06(B) until the provisions of R.C. 731.27 with regard to the reconsideration of the disapproved ordinance had been followed.
The subdivision plan passed as an ordinance by council is not a legally valid and effective plan because it was disapproved by the mayor and was never, upon reconsideration, “approved by a two-thirds vote of all the members” elected to council.
Neither of the two subdivision plans filed by Public Service Director White is a legally valid and effective plan because he was not authorized by statute to make such subdivisions at the time he made and filed them.
The subdivision plan promulgated and filed by Public Service Director Zimmerman on January 21, 1972, is the legally valid and effective plan. This subdivision plan was not made and filed until January 21, 1972 — (1) after the ordinance disapproved by Mayor Lemley had been returned to the regular meeting of council on January 4, 1972, with the mayor’s objections to the ordinance, as required by statute, (2) until the ten days required by statute to elapse before council could reconsider the ordinance had passed, and (3) council had failed to reconsider the disapproved ordinance and, upon reconsideration, to approve it by a two-thirds vote of the elected members of council, as required by statute if the ordinance plan was to be effective.
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There was no claim made in either of the courts below, or in this court, that council did not have a reasonable time within which to reconsider the disapproved ordinance, along with the mayor’s objections and, upon reconsideration, to act to approve that ordinance by the required two-thirds vote of the elected members of council, not withstanding the mayor’s objections.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
HERBERT, STERN, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN, J., concurs in the judgment.
CELEBREZZE, J., dissents.