The opinion
On Motion for Rehearing.
It is claimed that the section of the Constitution article V, § 1, quoted in the petition for rehearing on page 4, gives power of referendum upon every ordinance, whether “necessary for the immediate preservation of the public peace, health and safety” or not, because it reserves the right “as to all local, special and municipal legislation of every character,” but that construction ignores the previous clauses. “The initiative and referendum powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special” etc. What referendum powers were “reserved to the people”? Looking back in the section.we read that, “The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or safety.” This, then, is what is “further reserved to the legal voters of every * * * city * * not an unlimited power of referendum, but the same power reserved to the people, which excepts necessities for public health and safety. Under this limitation, and under the further limitation that they must be local, special or mu *36 nicipal, ordinances of “every character” may be referred. The supreme court of Ohio, under a Constitution less explicit than ours, held that the municipal legislature had power to pass non-referable ordinances. Shryock v. Zanesville, 92 Ohio St. 375 , 110 N. E. 937 .
By the ordinance the city agrees, to “establish and enforce” a schedule of charges for light “sufficient” to meet interest and principal when due. Plaintiff in error says that this puts the city under obligation to pay the whole of the bonds, and so makes them its debt, because the Public Utilities Commission may not allow such charges, in which case the city would be liable for breach of its contract to “establish and enforce”; but he does not mention § 13 of the ordinance which provides that, if the Public Utilities Commission will not allow such charges, the interest on the revenue bonds shall be a just charge upon the revenue from the plant. This shows the intention of the parties upon the contingency which plaintiff in error apprehends, and that it is not that the city shall then be liable on the bonds at all events. This, taken in connection with the provisions of the ordinance and the revenue bonds themselves, that they are payable only out of the income of the property makes the matter beyond question.
A more serious question is what the liability of the city is supposing the utmost income it can collect will not meet interest and principal. But even then the undertaking is not to guarantee the payment of the interest and principal, but only to establish a rate that will do it, if possible. It must be supposed to be understood between the city and the bondholders that the former cannot compel its citizens to take light.