State ex rel. Evans v. Moore

Locher, J.,

dissenting. The majority opinion fails at the threshold of “Home Rule” analysis.5 Therefore, I must dissent. Section 3 of Article XVIII of the Ohio Constitution provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” (Emphasis added.)

*96This court has repeatedly stated that we need not reach the question of whether a local provision conflicts with the general laws if a power of local self-government is at issue. See, e.g., State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, paragraph four of the syllabus; Dies Electric Co. v. Akron (1980), 62 Ohio St. 2d 322, 325. The majority neglects to make this critical determination and merely searches for a conflict between the ordinance and the general laws. Rather, the conflict issue should not arise here because this case involves a central power of self-government — the power of the purse.6

Today’s decision prevents a municipality from controlling payments to the employees of contractors engaged in public works construction projects. Yet, almost 30 years ago, this court held that a city may exempt its classified civil service employees, who are working on the construction of public improvements, from the prevailing wage law. Craig v. Youngstown (1954), 162 Ohio St. 215.7 In tandem, today’s holding and Craig mean that the employees’ status determines whether the prevailing wage law applies rather than the employees’function. I see no constitutional distinction between the employees of a city and the employees of a contractor who may be performing the same tasks. Regardless, the majority does not cite Craig, much less distinguish it.

Furthermore, in Dies, supra, at 326, we concluded that “the retainage of funds to guarantee work executed on a contract for the improvement of municipal property is a matter embraced within the field of local self-government.” In tandem, today’s holding and Dies mean that a municipality may not determine how much it will pay that same contractor’s employees.

None of this makes legal, fiscal or economic sense. Indeed, the majority decision leaves municipalities powerless to contract.

*97Section 3 of Article XVIII guarantees the right of municipalities “to exercise all powers of local self-government.” Nothing is more germane to effective self-government than the power to determine the nature, kind and extent of municipal expenditures.

Accordingly, I would reverse the judgment of the Court of Appeals and remand the cause to that court to reinstate the judgment of the trial court upholding Upper Arlington Ordinance No. 75-78 as a proper exercise of that city’s Home Rule power.

Holmes and Krupansky, JJ., concur in the foregoing dissenting opinion.

The majority likewise does not address the prior question: why this cause lends itself to mandamus. That is, the majority does not so much as mention the three criteria for mandamus: “the relator has a clear legal right to the relief prayed for, * * * the respondent is under a clear legal duty to perform the requested act, and * * * relator has no plain and adequate remedy at law * * * .” State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St. 2d 42, paragraph one of the syllabus. We should reverse the Court of Appeals under this analysis alone.

See our general discussion of the powers of local self-government, as well as their limitations, in Dies, supra, at 326-328.

This conclusion is consistent with the numerous holdings of this court that municipalities can control the compensation of their employees. See, e.g., State, ex rel. Mullin, v. Mansfield (1971), 26 Ohio St. 2d 129, paragraph three of the syllabus, certiorari denied, 404 U. S. 985; Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, paragraph two of the syllabus; Teamsters Local Union No. 377 v. Youngstown (1980), 64 Ohio St. 2d 158.