City of Cincinnati v. Butterfield. [14 Ohio cinnati, but denies generally the allegations of negligence and pleads contributory negligence. In the opening statement counsel for plaintiff stated, among other things, in substance, the abovequoted allegation of the petition. At the close of the opening statement, counsel for the city moved for judgment of dismissal of the petition, for the reason that neither the opening statement nor the petition showed a cause of action against the city. The court overruled the motion, and this overruling, and the point that the judgment should have been for the defendant instead of for the plaintiff, are among the claimed grounds of error. These points involve the question of liability of a city for acts of negligence committed by its police officers while in the discharge of their duties. In other words, Is a city, through its policemen engaged in the discharge of their duties, discharging a governmental function, or is it acting in a ministerial or proprietary capacity? If it is discharging a governmental function, there can be no liability on its part, otherwise an action lies. Fowler, Admr., v. City of Cleveland, 100 Ohio St., 158. The police department derives its authority from the state. State, ex rel. Doerfler, Pros. Atty., v. Price, Atty. Genl., 101 Ohio St., 50. The duties of a police officer are the upholding of the law, to see that the laws are obeyed; to prevent and punish infraction of the criminal laws of the state and city; and to patrol his beat for these purposes. In procuring the performance of these duties, through its police officers, the city is engaged in the discharge of a governmental function. It is App.] City of Cincinnati v. Butterfield. the exercise of a state power. This conclusion is supported by the following cases: Bell v. City of Cincinnati, 80 Ohio St., 1; City of Cleveland v. Payne, 72 Ohio St., 347; State, ex rel., v. Price, Atty. Genl., supra; Burnell v. City of Columbus, decided by the court of appeals of Franklin county, September 29, 1920, and Peterman v. City of Youngstown, decided by the court of appeals of Mahoning county, March 25, 1921. In this case we hold that the city through the police officer was at the time engaged in the discharge of a governmental function, and no liability attached. The trial court therefore erred in overruling the motion to dismiss and in rendering judgment for plaintiff instead of for the defendant, the city of Cincinnati. We find no other error in the record. Coming now to render the judgment that the lower court should have rendered, judgment will be entered here in favor of the plaintiff in error and the petition dismissed. Judgment for plaintiff in error. CUSHING and BUCHWALTER, JJ., concur. Ohio Val. Elec. Ry. Co. v. Hagerty, Aud. [14 Ohio THE OHIO VALLEY ELECTRIC RAILWAY Co. v. HAGERTY, AUDITOR. Municipal corporations-Referendum-Statutory requirements mandatory, when-Section 4227-4, General Code-Sufficiency of affidavit accompanying petition - Knowledge of contents by signers Street railway ordinance. 1. The power of a minority of the electors to force proposed legislation to a referendum includes the power to suspend such legislation until the next regular election and can only be exercised by fully complying with all the provisions prescribed for such referendum. 2. The provision of the statute (Section 4227-4), requiring each part of a petition for a municipal referendum to contain an affidavit that the petitioning electors signed such petition with knowledge of the contents thereof, is mandatory. (Decided March 11, 1921.) APPEAL: Court of Appeals for Lawrence county. Messrs. Johnson & Jones, for plaintiff. MAUCK, J. This is an action to enjoin the holding of an election at which it is sought by referendum proceedings to submit to the electors of the city of Ironton, for their approval or rejection, an ordinance affecting the contractual relations of the plaintiff herein in its operation of a street railway in that city. The question at issue is whether or not those seeking the referendum have omplied with the requirements necessary to secure the same. The petitioning electors filed with the city auditor a petition which contained the number and title App.] Ohio Val. Elec. Ry. Co. v. Hagerty, Aud. of said ordinance, and was signed by a sufficient number of electors to secure the desired referendum. Attached to the petition was the following verified statement: "The State of Ohio, Lawrence county, ss: "Before me, the undersigned notary public within and for said county, personally appeared Thomas L. Collett, who being duly sworn declared that he is an elector of the City of Ironton, Ohio; that he signed the foregoing petition; that he saw the several persons whose names are signed to said petition sign the same, and that all of said names were signed in his presence; that he verily believes that all of the persons whose names are signed to said petition are electors of said City of Ironton." The governing statute under which this petition is filed, and by which must be determined the sufficiency of the steps taken by the petitioners, is Section 4227-4, General Code, which in part reads as follows: "Each part of such petition shall contain the affidavit of the person soliciting the signatures to the same, which affidavit shall contain a statement of the number of signers of such part of such petition and shall state that to the best of his knowledge and belief each of the signatures contained on such part is the genuine signature of the person whose name it purports to be, and believes that such persons are electors of the municipal corporation and that they signed such petition with knowledge of the contents thereof." Ohio Val. Elec. Ry. Co. v. Hagerty, Aud. [14 Ohio It is apparent that the affidavit above quoted is not in exact compliance with the statute, in that it does not show that the petitioners "signed such petition with knowledge of the contents thereof." The difference between the affidavit made and the requirements of the statute seems slight, and is, confessedly, technical. But the question is not to be disposed of by describing it as technical. If the general assembly has prescribed a condition that must be fully complied with before a referendum is had the province of the court is limited to ascertaining whether that condition has been met. The legislative power of a city is primarily vested in the city council. (Section 4206, General Code.) An ordinance duly passed by the council becomes effective thirty days after its passage. (Section 4227-2, General Code.) Such legislative act is nullified, if, upon a referendum, it fails to be approved by a majority of the electors voting thereon. Care was taken by the general assembly, as will be hereafter pointed out, to protect the voice of a majority, once an election is had, from being stifled by technical objections. The power and rights of a majority duly expressed at an election, however, are not to be confused with the power, and rights of a minority seeking an election. It is not a majority, but ten per cent. of the voting population that calls a referendum. This minority of one-tenth of the voters, by the filing of a proper petition, suspends the legislative action of the council until the next regular election. That is, this minority is given the power to suspend the legislative power of the council, representing all the people, for a period as short as forty days or as long as thirteen months |