The majority opinion makes possible repetitious referendums in a manner and involving questions not contemplated by the charter of the City of Wheeling. Undoubtedly *Page 308 the charter provisions contemplate that the voters, following the prescribed routine, may assume the legislative initiative in the manner set out in section eleven of the city charter. I find no provision that valid ordinances passed by the city council may be repealed in like manner. Of course, if this were so, the city council's legislative function would be limited to passing ordinances having only "permissive validity", and the stability of legislation would be undermined to the extent that the contracts, improvements and general development, including the social structure, of our municipalities would have no foundation. It is unnecessary to refer to the opportunity for fraud, corruption, blackmail and excessive cost developments that it seems to me obvious would be unavoidable.
Section ten of the charter requires that enactments changing precinct boundaries or otherwise re-districting the city, annexing territory or granting a utility franchise, except when otherwise required by the general laws of the state, shall not go into effect before thirty days from the time of their final passage and not then unless published within two days after passage in two newspapers circulated in the city. The same section further provides that if within the thirty-day period, a petition of protest against the passage of such an ordinance signed by one thousand electors of the city is filed or presented to the council, thereupon it shall be the duty of the council to reconsider it, and if not entirely repealed submit it to a referendum in the manner provided. This is the only section of the charter providing for the repeal of any action of the city council, and it does not include ordinances of the kind under consideration.
Section eleven of the city charter specifies certain kinds of ordinances which shall be submitted to a referendum upon the affirmative petition of one thousand electors. This section is applicable only to the affirmative action of the city council, or if this does not follow, the presentation of the petition provides for the affirmative action *Page 309 of the electors. It contains no other provision and bears no relation to the repeal of existing ordinances.
The ordinance under consideration was passed by the city council of Wheeling on the twenty-seventh day of December, 1938, and contained provisions authorizing the mayor to enter into a contract with the Wheeling Housing Authority. This was done by the mayor on the thirteenth day of January, 1939, and on February the tenth a petition was filed requesting the city council to repeal the ordinance under the provisions of which the contract was entered into, or if they declined to do so, to submit that question to a referendum. The council having declined to comply with the petition, the Circuit Court of Ohio County awarded a writ of mandamus requiring him so to do, and it is from that order that this review was granted.
I do not think that there is any question but that referendum is confined excusively to legislative matters, and that it does not in any way control administrative matters. If the rule laid down by the majority opinion does not result in the electors of the City of Wheeling having direct control over the administrative functions of their city government, it will be because they have neglected an obvious opportunity.
The charter of the City of Wheeling vests all legislative power in the city council, subject to the terms of the charter and the constitution. This, of course, means that in so far as the initiative and referendum are concerned, the power of the city council, unless clearly subjected to conditions, is to be taken as unimpaired. Section ten of the charter deals with the questions which may be involved and submitted to a referendum. Section eleven deals with those questions concerning which, upon the petition of one thousand electors, the initiative may be assumed by the qualified voters of the city. This section relates to all proposed ordinances; not to the repeal of an ordinance, as here.
I do not think that either section ten or section eleven of the city charter is intended to provide for the repeal *Page 310 of an ordinance passed by the city council more than one year prior to the time the petition for its repeal is presented to that body.
As a usual thing, a referendum does not extend to the administrative functions of a city council. Note, Ann. Cas. 1916B, page 820. And in order that a charter provision shall be so construed, the legislative purpose should be distinctly and clearly expressed. 19 Rawle C. L., page 909 and page 746. To so construe section eleven of the city charter would be dangerously near setting up a device which could be used for impairing the obligation of contracts entered into under city ordinances thereby made subject to repeal by popular vote, and that class of ordinances, as well as every other class, would be a constant target and a constant expense to the city, provided that as many as one thousand electors wished to protest an unlimited number of times during an infinite period of time. The number of electors in the City of Wheeling is roughly estimated at twenty thousand, therefore, I am impressed that under the majority's view five per cent of that city's voting population will be enabled to keep Wheeling in constant turmoil.
There are other relevant legal questions, such as rules of statutory construction, that I would like very much to discuss. However, my only purpose is to clarify the fundamental reason for my disagreement with the majority holding, and, with all deference, I hope a lengthy paper is not required for that purpose.