PAYNE v. STATE Ex Guitteau , 32 Ohio App. 189 ( 1928 )

WILLIAMS, J.

There is no question that the charter of the City of Toledo, which became effective January 1, 1916, requires the ordinances passed by the Council to be submitted to the Mayor for approval and gives him the veto power. We think it is obvious, however, that the city charter can not enlarge the provisions of the Constitution of Ohio with reference to ah amendment to such charter and that the matter is fully 'covered by that part of Section 9 of Article XVIII of the Constitution of Ohio which reads as follows:

“Amendments to any • charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof.”

The contention of the plaintiff in error is that the words “legislative authority” include not only the exercise of legislative power by the municipal council but the approval or rejection of the ordinance by the mayor. The contention can not be sustained and such a construction would be a strained one. By the plain terms of the Constitution the council may submit to the electors of a municipality an amendment to the charter by the vote of two-thirds or more of its members, and that when the council takes such action the electors of the municipality have the right to determine the question, and the approval of the mayor is not required, nor can the mayor take that right away by an exercise of the veto power.

As the Clerk of the Council had complied with the command contained in the writ of mandamus before the commencement of this proceeding in error, there is some question whether or not the matter presented is a1 moot question. We have found, however, no difficulty in deciding the case upon its merits.

Finding no error in the record prejudicial to the plaintiff in error, the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)