State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 17 (1991)
577 N.E.2d 645

Counties or towns and their boards or
officers

KeyCite Yellow Flag - Negative Treatment
Distinguished by State ex rel. Commt. for the Charter Amendment, City
Trash Collection v. Westlake, Ohio, October 3, 2002

Municipal Corporations
New Charter and Reorganization
Home rule city had clear legal right, by virtue
of city's self-executing powers of local selfgovernment conferred by Constitution, to call
advisory election on matter of local concern as to
whether subsequent charter amendments should
be made for submission to voters to change city
charter to mayor-council form of government
from manager-council form of government, and
since city was without adequate legal alternative
to writ, city was entitled to writ of mandamus
requiring county board of elections and Secretary
of State to place question on ballot. Const. Art.
18, §§ 3, 8, 9.

62 Ohio St.3d 17
Supreme Court of Ohio.
[The STATE, ex rel.] CITY OF BEDFORD, Appellant,
v.
BOARD OF ELECTIONS OF
CUYAHOGA COUNTY et al., Appellees.
No. 90–2123.
 
Submitted July 31, 1991.
 
Decided Sept. 25, 1991.
Synopsis
Home rule city sought writ of mandamus to compel board of
elections of county and Secretary of State to place on ballot
for general election question of whether subsequent charter
amendments should be made for submission to voters to
change charter of city to mayor-council form of government
from manager-council form of government. The Court of
Appeals for Cuyahoga County denied writ. Appeal was taken
as of right. The Supreme Court held that home rule city was
entitled, by virtue of city's powers of local self-government,
to call advisory election.
Judgment reversed and writ allowed.

10 Cases that cite this headnote
[3]

Municipal Corporations
Amendment of charter or special act
Procedures may be added to constitutional
charter amendment process if additions do not
conflict with State Constitution. Const. Art. 18,
§ 9.
5 Cases that cite this headnote

[4]

Election Law
Matters subject to initiative or submission

West Headnotes (4)

Public policy does not prohibit use of elections to
determine public sentiment on issues involving
matters of local self-government.

[1]

3 Cases that cite this headnote

Mandamus
Remedy at Law
Mandamus
Nature and existence of rights to be
protected or enforced
For writ of mandamus to issue, party must have
clear legal right to performance of clear legal
duty and no adequate remedy in ordinary course
of law.

[2]

Mandamus

**645 *17 The city of Bedford, appellant, seeks a writ of
mandamus to compel the Board of Elections of Cuyahoga
County and the Secretary of State, appellees, to place the
following question on the ballot for the 1991 general election:
“Should subsequent charter amendments be made for the
submission to the voters which change the Charter of the City
of Bedford, Ohio to a Mayor–Council form of government
from a Manager–Council form of government?”

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

1

 State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 17 (1991)
577 N.E.2d 645

An election on this question was authorized by Ordinance No.
6097–90, which was passed by the Bedford City Council on
June 11, 1990. The question was originally proposed by the
Bedford Charter Review Commission pursuant to Section 6,
Article XIII of the Bedford City Charter. Section 6 provides,
in part:
“ * * * The commission shall review the charter and propose
for adoption * * * any alterations, revisions or amendments
which the commission deems advisable. Each proposal shall
be submitted to the electorate unless rejected by a vote of five
(5) or more members of Council and shall appear on the next
November ballot. * * *”
The Court of Appeals for Cuyahoga County denied Bedford's
request for the writ and dismissed the city's complaint. The
court of appeals held that the proposed question was nothing
more than a means to gauge public opinion and, therefore,
that it did not constitute one of the “alterations, revisions or
amendments” for which the charter allows elections to be
held. The **646 court relied on State, ex rel. Cleveland
City Council, v. Cuyahoga Cty. Bd. of Elections (1974), 40
Ohio App.2d 299, 69 O.O.2d 273, 318 N.E.2d 889, which
disapproved of using elections to determine public sentiment
on issues. From this, the court concluded that the board of
elections and Secretary of State had no duty to submit the
proposed question to the electorate and that Bedford was not
entitled to the performance of this act.
The cause is now before this court upon an appeal as of right.
Attorneys and Law Firms
*18 Calfee, Halter & Griswold, Mark I. Wallach, John E.
Gotherman and Smith R. Brittingham IV, Cleveland, for
appellant.
Stephanie Tubbs Jones, Pros. Atty., and Michael P. Butler,
Cleveland, for appellee Board of Elections.
Lee I. Fisher, Atty. Gen., and Catherine M. Cola, Columbus,
for appellee Secretary of State.
Opinion
PER CURIAM.
Per Curiam. [1] For a writ of mandamus to issue, Bedford
must have a clear legal right to the performance of a clear

legal duty and no adequate remedy in the ordinary course of
law. State, ex rel. Brookpark Entertainment, Inc., v. Cuyahoga
Cty. Bd. of Elections (1991), 60 Ohio St.3d 44, 45–46, 573
N.E.2d 596, 598–599. For the reasons that follow, we hold
that Bedford is entitled, by virtue of the city's powers of local
self-government, to call the advisory election in dispute, that
the board of elections and Secretary of State therefore have
a clear legal duty to conduct the election, and that Bedford is
without an adequate legal alternative to the writ. Accordingly,
we reverse and grant the writ.
IClear Right and Clear Duty
[2] The board of elections and Secretary of State implicitly
agree that they have a duty to conduct elections that Bedford
has the power to authorize. Thus, to establish that the city does
not have the power to authorize this advisory election, these
election authorities principally rely, as the court of appeals
did, on State, ex rel. Cleveland City Council, v. Cuyahoga Cty.
Bd. of Elections (1974), 40 Ohio App.2d 299, 69 O.O.2d 273,
318 N.E.2d 889.
In Cleveland City Council, the court of appeals determined
that the city could not authorize an election of the question
“whether or not there should be city-wide laws requiring the
registration of firearms.” Id. at 300, 69 O.O.2d at 274, 318
N.E.2d at 890. The court held that the city had no power to
submit the proposed ordinance to the electorate absent charter
or statutory authorization. Id. at 305, 69 O.O.2d at 277, 318
N.E.2d at 893; accord 1958 Ohio Atty.Gen.Ops. No. 2332.
The court also held:
“Municipal [o]rdinances must accomplish some substantive
or procedural governmental purpose. This [o]rdinance is
nothing more than an ‘advisory opinion’ or local ‘Gallup
Poll’ and is of no legal consequence. It merely proposes to
advise the City Council of voter attitudes on the broad general
subject of gun registration. Legislators are elected by the
voters to perform *19 their duties as legislators and this
function cannot be delegated by the legislators to the voters.
If the electorate were to vote on all proposed ordinances,
it would eliminate a need for legislative bodies. Further,
costly election machinery cannot be used by legislative bodies
to determine community attitudes and sentiments on public
issues.” Id. at 306, 69 O.O.2d at 278, 318 N.E.2d at 893–894.
Cleveland City Council has been the polestar of Ohio case law
on advisory elections for years. Bedford, however, challenges
Cleveland City Council ' s holding that a city cannot act
without express charter or statutory authorization as being

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

2

 State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 17 (1991)
577 N.E.2d 645

inconsistent with the city's constitutional powers of local selfgovernment. Bedford also attacks the conclusion that public
policy disfavors advisory elections.
A
The Exercise of Home Rule Powers Not
Authorized by Charter or Statute
Bedford essentially concedes that its proposed ballot issue
is only a first step to **647 amending the city charter
and, thus, that the question does not propose “alterations,
revisions or amendments” pursuant to Section 6, Article
XIII of the charter. The city contends, however, that it has
the power to call the election without a specific enabling
charter provision or statute because (1) municipal elections
on matters of local concern are within the powers of local
self-government conferred by Section 3, Article XVIII of the
Ohio Constitution, and (2) these powers are self-executing.
We agree.
The board of elections and Secretary of State do not dispute
the purely local character and effect of the question Bedford
proposes. Thus, Bedford's first premise is established by
Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 347, 103
N.E. 512, 514, where, in holding that a city charter could
provide for a method of nominating local candidates other
than that prescribed by the General Assembly, this court said:
“It is clear upon reason and authority that municipal
elections are and should be regarded as affairs relating to
the municipality itself, and, in the absence of fundamental
limitations prohibiting, are things that may be provided for by
the local government.* * * ” Accord Reutener v. Cleveland
(1923), 107 Ohio St. 117, 133, 141 N.E. 27, 31.
Bedford's second premise is established by Perrysburg v.
Ridgway (1923), 108 Ohio St. 245, 140 N.E. 595, paragraphs
one and three of the syllabus, which state:
*20 “1. Since the Constitution of 1912 became operative,
all municipalities derive all their ‘powers of local selfgovernment’ from the Constitution direct [ly], by virtue of
Section 3, Article XVIII, thereof.
“***
“3. The above constitutional grant of power to municipalities
is ‘self-executing,’ in the sense that no legislative action is
necessary in order to make it available to the municipality.”

Perrysburg stands for the principle that municipal power
is derived from the Ohio Constitution, not from a charter.
Northern Ohio Patrolmen's Benevolent Assn. v. Parma
(1980), 61 Ohio St.2d 375, 380–381, 15 O.O.3d 450, 453–
454, 402 N.E.2d 519, 523–524. Indeed, because a municipal
charter is “neither a source of power nor necessary for its
exercise[,]” Vaubel, Municipal Home Rule in Ohio (1975),
3 Ohio N.U.L.Rev. 1, 37, we have held that a city possesses
home rule powers regardless of whether it has adopted a
charter. State, ex rel. Arey, v. Sherrill (1944), 142 Ohio
St. 574, 27 O.O. 505, 53 N.E.2d 501, paragraph one of
the syllabus. Thus, contrary to Cleveland City Council and
the elections authorities' argument, Bedford needs no charter
authorization to call the instant election.
Nor has this court required a statutory source for a
municipality to exercise the powers of local self-government.
Instead, we have said that these powers are “inherent as an
incident” of the self-executing constitutional grant in Section
3, Article XVIII of the Ohio Constitution. State, ex rel.
McClure, v. Hagerman (1951), 155 Ohio St. 320, 323, 44 O.O.
309, 311, 98 N.E.2d 835, 837.
State, ex. rel. Gordon, v. Rhodes (1951), 156 Ohio St. 81, 45
O.O. 93, 100 N.E.2d 225, confirms that home rule powers
granted by Section 3, Article XVIII of the Ohio Constitution
exist without the aid of legislation and that those powers may
be exercised freely and fully where not limited by relevant
charter, statutory or constitutional provisions. In Gordon, the
relator sought a writ of mandamus to compel city officials to
enforce an ordinance, purportedly passed pursuant to certain
state statutes, authorizing them to issue mortgage revenue
bonds to finance the city's purchase of off-street parking
facilities. The respondent officials had refused to execute the
bonds, expressing doubt that the state could empower cities
to issue mortgage bonds to finance such projects. This court
held that cities have the authority to issue bonds for such a
purpose without enabling legislation, because that authority
was within the general home rule powers conferred by Section
3, Article XVIII of the Ohio Constitution, and was not limited
by any relevant charter, statutory or constitutional provision.
No such limitations existed **648 in Gordon, and, therefore,
we granted the writ.
*21 The reasoning in Gordon, which manifests that
the powers of local self-government are available unless
restricted, applies here. Thus, this case does not turn,
as Cleveland City Council concludes and the elections
authorities submit, on whether the city charter or any statute

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

3

 State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 17 (1991)
577 N.E.2d 645

authorizes an advisory election on the proposed Bedford
charter amendment. Under Gordon, our focus must instead
be on whether the Bedford Charter, the Revised Code, or the
Ohio Constitution prevents the election.
Applying this test, we first find nothing in the city charter
that expressly prohibits the instant advisory election. Sections
4 and 6, Article XIII of the Bedford Charter provide for
elections on amendments proposed by a two-thirds vote of
the city council or by petition of ten percent of the city
electors, consistent with Section 9, Article XVIII of the
Ohio Constitution, and on amendments proposed by a charter
review commission. These sections, however, do not provide
that only the amendments themselves may be placed on the
ballot. Instead, Section 1, Article I of the charter provides:
“ * * * [The city] shall have all powers of local selfgovernment which now are, or hereafter may be granted to
municipalities by the Constitution or laws of the State of Ohio,
either expressly or by implication, as fully as though every
such power were enumerated herein. The enumeration of or
reference to particular powers by this Charter shall not be
construed to be exclusive.” See Gordon, supra, at 83, 45 O.O.
at 94, 100 N.E.2d at 227.
The charter also does not implicitly prevent the advisory
election. The election is proposed only as a precursor to, not
in place of, an election on the amendment itself. Thus, this
is not a situation like Cuyahoga Falls v. Robart (1991), 58
Ohio St.3d 1, 5, 567 N.E.2d 987, 991–992, in which we cited
Cleveland City Council in holding that a charter provision
requiring the city law director to represent the city in all
litigation implicitly prevented the city from replacing the law
director with outside counsel for this purpose. Indeed, we
also said in Robart that the charter provision did not affect
the city's ability to employ outside counsel to assist the law
director. Id. at 5, 567 N.E.2d at 991–992, fn. 2. In doing so,
we acknowledged a city's authority to act, as here, in ways not
specified by, but not in violation of, its charter.
Gordon next requires us to consider the Revised Code.
However, we are not aware of any statute that prohibits the
advisory election Bedford proposes, and none is cited by the
parties. Thus, we turn directly to Section 9, Article XVIII of
the Ohio Constitution, which governs the charter amendment
process.
As mentioned, Section 9, Article XVIII, Ohio Constitution
and Section 4, Article XIII of the Bedford Charter contain

essentially the same procedure for charter amendments while
Section 6, Article XIII of the charter provides a *22 different
process. In Billington v. Cotner (1971), 25 Ohio St.2d 140,
145–146, 54 O.O.2d 270, 273, 267 N.E.2d 410, 414, however,
we held the constitutional procedure to be exclusive:
“Section 9, Article XVIII of the Ohio Constitution, provides
that an amendment to a charter of a municipality ‘may
be submitted to the electors of a municipality by a twothirds vote of the legislative authority thereof, and, upon
petitions signed by ten per centum of the electors of the
municipality setting forth any such proposed amendment,
shall be submitted by such legislative authority.’ The manifest
object of this constitutional provision is to provide the
procedure for the submission of a charter amendment to
electors. The requirements are clear and complete, and are not
to be added to or subtracted from.” Accord Switzer v. State,
ex rel. Silvey (1921), 103 Ohio St. 306, 314–315, 133 N.E.
552, 554.
[3] Billington and Switzer suggest that the instant advisory
election is constitutionally impermissible not because the
election is outside Bedford's powers of local self-government,
but because using such elections as a first step to charter
amendment is inconsistent with the exclusive process in
Section 9, Article XVIII, Ohio Constitution. However, we
have allowed **649 municipalities to supplement the
constitutional charter amendment process with procedures
that are not contrary to the express provisions in Section 9.
See, e.g., Reutener, supra, 107 Ohio St. at 133, 147 N.E.
at 31 (sections of charter amendments may be submitted to
electorate together as well as separately, since Constitution
does not prohibit submission en bloc ), and State ex rel.
Daniels, v. Portsmouth (1939), 136 Ohio St. 15, 17, 15 O.O.
336, 337, 22 N.E.2d 913, 914 (charter may require that names
of initiative committee members be placed on petition for
charter amendment). As a result, we read Billington and
Switzer narrowly and hold that procedures may be added to
the constitutional charter amendment process if the additions
do not conflict with the Ohio Constitution. Indeed, to hold
otherwise would prevent all departures from constitutional
requirements, including the apparently popular provision for
amendment proposals by charter review commissions. See,
e.g., State, ex rel. Rosch, v. Cuyahoga Cty. Bd. of Elections
(1975), 42 Ohio St.2d 364, 71 O.O.2d 329, 328 N.E.2d 793.
The advisory election in this case would have no effect on
Bedford's observance of the constitutional requirements in
Section 9. Again, the election is not intended as a substitute

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

4

 State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 17 (1991)
577 N.E.2d 645

for an election on the amendment itself. Rather, the advisory
election would only initially test the appeal of the proposed
amendment, with a second election on the amendment to
follow, if warranted. Moreover, the advisory election would
serve the manifest objective of this constitutional provision
by soliciting preliminary public approval of *23 charter
changes. Thus, we do not find the election Bedford proposes
objectionable from a constitutional standpoint.

Having determined that Bedford is entitled to authorize this
advisory election and that the election is consistent with
public policy, we hold that the court of appeals erred by
relying on Cleveland City Council and reaching opposite
conclusions. We further hold that Bedford has established
a clear right to the election it seeks and that the board of
elections and Secretary of State are, therefore, obligated to
conduct the election.

Based on the foregoing, no law prohibits Bedford from
authorizing an advisory election on this charter amendment.
Accordingly, we hold, consistent with Gordon, supra, and
Bedford's argument, that the city may call this election as
a valid exercise of the constitutionally conferred powers of
local self-government, notwithstanding that the election is
not specifically authorized by the city's charter or by statute.
Furthermore, because it does not properly account for these
powers, we disapprove of the court of appeals' statement to
the contrary in Cleveland City Council.

IIAdequate Remedy
The last requirement for a writ of mandamus is the absence of
an adequate remedy **650 in the ordinary course of law. We
consider this issue, even though *24 the court of appeals did
not, pursuant to our plenary authority in extraordinary actions.
State, ex rel. Natalina Food Co., v. Ohio Civil Rights Comm.
(1990), 55 Ohio St.3d 98, 99, 562 N.E.2d 1383, 1384.

BPublic Policy
[4] In addition to holding that a city can exercise home rule
powers only with charter or statutory authorization, the court
in Cleveland City C ouncil concluded as a matter of policy that
elections may never be used to determine public sentiment on
issues involving matters of local self-government. We do not
agree.
As Bedford points out, Section 8, Article XVIII of the Ohio
Constitution provides for an advisory election as the first
step in the adoption of a municipal charter. Specifically,
Section 8 allows, and on petition by ten percent of the electors
requires, a city council to authorize by ordinance an election
on the question, “Shall a commission be chosen to frame
a charter [?]” As the Ohio Constitution explicitly approves
of an advisory election at this stage, we cannot say that
policy considerations prevent similar elections after a charter
is adopted, on the question of whether it should be amended.
Accordingly, we also disapprove of Cleveland City Council
's broad statement that “costly election machinery cannot be
used by legislative bodies to determine community attitudes
and sentiments on public issues.” Id. at 306, 69 O.O.2d at 278,
318 N.E.2d at 893–894.
End of Document

The Secretary of State does not dispute the lack of an
adequate remedy, but the board of elections briefly suggests
that Bedford could have protested the decision not to hold
the advisory election on the charter amendment. The board,
however, apparently did not present this opportunity to
Bedford either before or after its decision. Thus, we cannot
deny Bedford relief on this basis, especially since we have
used mandamus in the past to compel a municipal election on
a charter amendment. See State, ex rel. Polcyn, v. Burkhart
(1973), 33 Ohio St.2d 7, 62 O.O.2d 202, 292 N.E.2d 883.
Bedford has, therefore, established all the elements necessary
for a writ of mandamus. Accordingly, the judgment below is
reversed and the writ is allowed.
Judgment reversed and writ allowed.

MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS,
WRIGHT, HERBERT R. BROWN and RESNICK, JJ.,
concur.
All Citations
62 Ohio St.3d 17, 577 N.E.2d 645

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

5