City of Rocky River v. State Employment Relations Board

539 N.E.2d 103, 43 Ohio St. 3d 1, 1989 Ohio LEXIS 67, 131 L.R.R.M. (BNA) 2952

Opinions

Douglas, J.

I

The Procedure

There have been a number of questions presented in both public and private forums concerning the procedure by which this case is again before us for decision. Considering the concurring statement of Justice Brown and the dissenting statements of Chief Justice Moyer and Justice Holmes in Rocky III, supra, we conclude that it would serve no useful purpose for any more to be written concerning motions for rehearing, clarification or reconsideration or to write further concerning time limits, past precedents on such motions or who voted how and when or why on such motions. Suffice it to say that this case has consumed a considerable amount of the time of all the members of this court and the moment has now come to place at rest the issues presented by this case.

II

Stare Decisis

Different from the procedural intricacies of this case is the question of stare decisis.

“Stare decisis” is, of course, shorthand for stare decisis et non quieta movere — “stand by the past decisions and do not disturb settled things.” See Black’s Law Dictionary (5 Ed. Rev. 1979) 1261. The heritage of the law is built like a wall — brick by brick. The spirit of the Anglo-Saxon law is, in part, the impact of the cases as they come down through the years. Each case as it is decided supplies another brick for the wall and gives us the taught tradition of the law. This tends to provide the stability necessary for an organized society to deal with its everyday affairs.

Uniformity and continuity in law are necessary for us to deal with our daily pursuits. We need to preserve the integrity of contractual agreements, wills, conveyances of property and our dealings in the commercial marketplace. The applications of the principles of tort cannot be an ever-changing concept. What is negligence in the morning must also be negligence in the afternoon. To permit such standards to be in a continual state of flux would invite havoc.

The doctrine of stare decisis provides solid rocks upon which men and women can build and arrange their affairs with confidence. The doctrine serves to remove the capricious element from the law and lends stability to society. Stare decisis is a strong tie which our future has with our past.

But the doctrine as it is generally applied (and as discussed in the foregoing) concerns the interpreting and deciding of the common law and the construction of statutes, ordinances, rules and regulations. The doctrine does not apply with the same force and effect when constitutional interpretation is at issue.

Accordingly, for at least three reasons, the doctrine of stare decisis does not apply to the case at bar. Because of the extensive discussion within the court among its members, and the widespread commentary in legal circles and in the press,⁷ we find it necessary and appropriate to set forth, in some detail, these reasons.

A

If stare decisis has any efficacy at all in this case, it is that the majority in Rocky I should have followed this court’s prior holdings in State, ex rel. Bd. of Trustees of Pension Fund, v. Bd. of Trustees of Relief Fund (1967), 12 Ohio St. 2d 105, 41 O.O. 2d 410, 233 N.E. 2d 135 (hereinafter “Pension Fund”); State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, 22 OBR 1, 488 N.E. 2d 181 (hereinafter “Dayton F.O.P.”) and Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St. 3d 50, 26 OBR 42, 496 N.E. 2d 983. These cases long ago settled the home-rule amendment argument pitting Sections 3 and 7, Article XVIII versus Section 34, Article II of the Ohio Constitution, to be discussed in more detail infra. Also settled were the questions of whether the collective bargaining law is a law of general nature and whether the Act was enacted pursuant to the police power of the state to promote the general safety and welfare, thereby prevailing over laws of a municipality adopted in the exercise of its powers of local self-government. In these previous cases, both questions were answered in the affirmative.

Therefore, if the doctrine of stare decisis applies to Rocky River, it should have been followed in Rocky I. Not having been followed in Rocky I, it cannot apply in Rocky TV.

B

The doctrine of stare decisis is a doctrine applying to future cases where the facts of a subsequent case are substantially the same as a former case. Black’s Law Dictionary (5 Ed. Rev. 1979) 1261. Rocky TV is not a different case than Rocky I. It is the same case! Therefore, the doctrine cannot apply to Rocky IV.

C

More important than any of the above is the fact that in Rocky River, we are dealing with constitutional issues. As will be discussed in detail infra, the questions presented to us in this case involve the construction and interpretation of Sections 3 and 7, Article XVIII and Section 34, Article II of the Ohio Constitution. While it is true that stare decisis is a rule that judges should observe with some reverence, it is also true that when constitutional issues are at stake, the rule is less compelling. There are several reasons for this.

Justice Brandéis, in one of his now famous and often-quoted writings on the subject, has said that “* * * [s\tare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. * * *” Washington v. W.C. Dawson & Co. (1924), 264 U.S. 219, 238 (Brandeis, J., dissenting). In an even more direct reference, to constitutional issues, Justice Brandeis stated in Burnet v. Coronado Oil & Gas Co. (1932), 285 U.S. 393, 406-408 (Brandeis, J., dissenting):

“* * * Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. * * * This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. * * *” (Footnotes and citations omitted.)

Accordingly, courts often assert that the rule of stare decisis is applied with varying force depending on the specific type of precedent involved. In the case of common-law precedents, such precedents provide the benchmark by which other case law is measured. When a precedent involves statutory interpretation, such precedent is viewed as more sacrosanct than the common-law precedents.

In contrast, the doctrine of stare decisis is less important in the constitutional context than in cases of either pure judge-made law or statutory interpretation. In cases where the legislature has the ability to correct judicial “errors,” bad precedents or improperly decided cases need not be cast in concrete. Thus, as justification for their extraordinary reluctance to overturn statute-based precedents, judges often cite the ability of the legislature to correct erroneous interpretations of legislative intent. See, e.g., Illinois Brick Co. v. Illinois (1977), 431 U.S. 720, 736; Boys Markets, Inc. v. Retail Clerks Union, Local 770 (1970), 398 U.S. 235, 240.

Conversely, it is generally beyond the power of the legislature to change or “correct” judicial interpretation of the Constitution. This is the main justification for taking a more flexible attitude toward overruling precedent in such cases. The doctrine of judicial supremacy in constitutional interpretation is widely and generally conceded. Given the inability of the legislature to override judge-made law in this area, it is clear that when an earlier decision is demonstrably wrong (as in the case of Rocky I), it is incumbent on the court to make the necessary changes and yield to the force of better reasoning.

A judge looking at a constitutional decision may have strong feelings to revere the past and accept what was once written. However, each judge remembers above all that she or he has sworn to support and defend the Constitution — not as someone else has interpreted it but as the judge deciding the case at bar interprets it. Section 7, Article XV of the Ohio Constitution states: “Every person chosen or appointed to any office under this state, before entering upon the discharge of its duties, shall take an oath or affirmation, to support the Constitution of the United States, and of this state, and also an oath of office.” R.C. 3.23 provides: “The oath of office of each judge of a court of record shall be to support the constitution of the United States and the constitution of this state * * * according to the best of his ability and understanding. * * *”

Would those who disagree with us in the majority have us violate our sacred oath? Should we, for whatever reason, be denied the right to reexamine constitutional precedent which, after all, is a personal matter for each judge who assumes these responsibilities? If the answer to these questions is “yes,” would we not then be letting persons, who may be long dead and gone and unaware of the problems of our age, do our thinking for us? Can we afford to live with such hidebound, slavish adherence to the past when, in fact, we live in an ever-evolving society that requires innovative thinking and even change to cope with problems of the present and future? Just to ask these questions answers them.

We concede we have no greater constitutional authority than those who follow us. But conversely, prior justices had no greater constitutional authority than do we.

What we do today, in reconsidering Rocky I, is not some forbidden aberration. It is, in fact, the fulfillment of our constitutional responsibilities, as the United States Supreme Court had done in one hundred seventy-five cases by the end of its 1981 term.⁸ One of these cases, of course, is Plessy v. Ferguson (1896), 163 U.S. 537. In Plessy, the Supreme Court had held that “separate but equal” is equal.

The Louisiana statute under review in Plessy required railway companies carrying passengers in their coaches in that state to provide “* * * equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations * * *.” Id. at 540. The statute provided that no persons shall be permitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to, and required the officers of the passenger trains to assign each passenger to the coach or compartment assigned for that passenger’s race. Fines or imprisonment were imposed upon passengers insisting on going into a coach or compartment other than the one set aside for their race. The statute authorized officers of the trains to exclude any passengers refusing to occupy the coach or compartment assigned to them, and exempted the railway company from liability for such refusal. Id. at 540-541.

The court held that neither the Thirteenth nor the Fourteenth Amendment to the United States Constitution bars a state from requiring the separa tion of the white and “colored” races in railroad passenger cars and that anyone violating the separation could be fined and imprisoned. In a strong dissent, Justice Harlan stated:

“* * * But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. * * *” Id. at 559.

In 1954, the court was called upon to decide the question of whether segregation of children in public schools solely on the basis of race meets constitutional muster. In Brown v. Bd. of Edn. (1954), 347 U.S. 483, the states of Kansas, South Carolina, Virginia and Delaware either permitted or required racial segregation in public schools. The states argued that the doctrine of “separate but equal” approved in Plessy should control. The appellees in Briggs v. Elliott, one of the three cases decided with Brown, placed great weight on stare decisis to protect the institution of racial segregation. They argued that a whole social order rested on this institution.⁹

Notwithstanding this argument and the longstanding Plessy precedent, the court, in one of its finest hours, in a unanimous decision delivered by Chief Justice Warren, held that in the field of public education, the doctrine of “separate but equal” has no place. The court found that legally sanctioned racial segregation is usually interpreted as connoting the inferiority of blacks, which adversely affects the educational development of black children. “* * * Any language in Plessy v. Ferguson contrary to this finding is rejected.” Id. at 494-495.

Would any of those who maintain, on the basis of stare decisis, that we should not reconsider Rocky I also be prepared to argue that the United States Supreme Court should not have reconsidered Plessy and that Brown, whether resolved on institutional, political, social or purely legal grounds, should never have been decided? To so argue would be to say that segregation, regardless of our sacred Constitution, should be the law of our country.

Some will say: “But Plessy and Brown are old cases and ancient history.” While there are many other examples of a more recent vintage than Brown, three will suffice.

On July 5,1984, the United States Supreme Court ordered reargument in two cases raising the issue of whether the Fair Labor Standards Act could constitutionally apply to San Antonio’s municipal transportation employees in light of National League of Cities v. Usery (1976), 426 U.S. 833. See 468 U.S. 1213-1214. The court, sua sponte, requested the parties to brief and argue the question of whether the principles of the Tenth Amendment, as set forth in National League of Cities, should be reconsidered. 468 U.S. at 1214.

This was a significant development. National League of Cities was decided by a five-to-four vote and, therefore, by a change in one vote, the case could be overruled. It was especially significant because National League of Cities itself had overruled a case decided only eight years before: Maryland v. Wirtz (1968), 392 U.S. 183. Wirtz had been a six-to-two decision.

Upon reargument, in 1985, of Garcia v. San Antonio Metropolitan Transit Auth. (1985), 469 U.S. 528, the court, in a five-to-four decision, over ruled National League of Cities. The Garcia majority brushed aside any supposed precedential compulsion in the penultimate paragraph of a lengthy opinion. Id. at 557. Just as interesting is that two of the justices in the minority said that Garcia should itself be overruled at the first opportunity.¹⁰

Decisions like Garcia have led thoughtful commentators to suggest that constitutional law would be better off absent any formal legal concept of stare decisis.¹¹ While we do not advocate or endorse such a position, it is interesting to note that in the space of three days in June 1987, the court, in four cases, overruled prior decisions.¹² In only one of the four cases, Puerto Rico v. Branstad (1987), 483 U.S. 219, 226-229, did the court appear to give any serious attention to the question of stare decisis.

Even more recently, on April 25, 1988, the United States Supreme Court, in Patterson v. McLean Credit Union (1988), 485 U.S.__, 99 L. Ed. 2d 879, 108 S. Ct. 1419, restored the case to its calendar for reargument. In this order, by a five-to-four vote (Chief Justice Rehnquist, Justices White, O’Connor, Scalia and Kennedy in the majority), the court, sua sponte, directed the parties “* * * to brief and argue the following question; ‘Whether or not the interpretation of 42 USC § 1981 * * * adopted by this Court in Runyon v. McCrary, 427 U.S. 160, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976), should be reconsidered?’ ” Id. at_, 99 L. Ed. 2d at 879-880, 108 S. Ct. at 1420.

The Runyon case involved the question of whether Section 1981 prohibits “* * * private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes, and, if so, whether that federal Taw is constitutional as so applied.” Id. at 168. The Runyon court held that the statute did prohibit such discrimination, and that the statute so applied did not violate such constitutionally protected rights as free association. The vote in Runyon was seven to two, with then Justice and now Chief Justice Rehnquist and Justice White in dissent. Now, some twelve years after Runyon and without even a motion being filed to somehow bring back before the court this important civil rights issue, the court, with three new members, chose to consider whether Runyon should be overruled. Patterson at_, 99 L. Ed. 2d at 880, 108 S. Ct. at 1420.

The majority made clear that such reconsideration was not a “first” for the court. The majority’s contention was supported by the citation of a large number of cases. Id. at_, 99 L. Ed. 2d at 880-881, 108 S. Ct. at 1420-1421.

The majority made, among others, two points: “* * * It is surely no affront to settled jurisprudence to request argument on whether a particular precedent should be modified or overruled.” Id. at_, 99 L. Ed. 2d at 880, 108 S. Ct. at 1420. “* * * These actions do not mean that the Court has been insensitive to considerations of stare decisis, but only that we recognize it as ‘ “a principle of policy and not a mechanical formula” ’ * * (Citations omitted.) Id. at_, 99 L. Ed. 2d at 881, 108 S. Ct. at 1421.

Thus, we see that the current panel of the Supreme Court of the United States, as had many of its predecessor panels, has moved to reconsider a constitutional matter of deep concern to a majority of the sitting members of that court. In the case now before our court, a constitutional question is clearly involved. The precedent for reconsideration is overwhelming.. The duty to do so is even more compelling.

Do all the foregoing examples portray the court as an unprincipled policy entity? We think not! Stare decisis “* * * is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Justice Frankfurter, writing for the court, in Helvering v. Hallock (1940), 309 U.S. 106, 119. It is a dynamic process. “* * * Those who reject this vision of the Constitution and who insist on a definitive and static view of constitutional ‘right’ and ‘wrong,’ ultimately must rely on power, rather than on principle, to effect their constitutional change.”¹³ Stare decisis is not inflexibly applicable to constitutional interpretation.

Accordingly, for all the foregoing reasons and because Rocky River involves the interpretation of the Ohio Constitution by the current members of this court, we now move to meet our sworn duty and responsibilities.

III

Presumption of Constitutionality

In determining the constitutionality of R.C. 4117.14(1), we are cognizant of the long-established principle requiring courts to presume the constitutionality of legislative enactments. State, ex rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio St. 2d 159, 161-162, 38 O.O. 2d 404, 405, 224 N.E. 2d 906, 909. This presumption can only be overcome by proof, beyond a reasonable doubt, that the legislation and the Constitution are clearly incompatible. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E. 2d 59, paragraph one of the syllabus. In our view, appellant has not sustained this heavy burden.

IV

The Law

R.C. 4117.14(1) provides:

“The issuance of a final offer settlement award constitutes a binding mandate to the public employer and the exclusive representative to take whatever actions are necessary to implement the award.”

Appellant challenges, on two grounds, the constitutionality of this section of the Public Employees’ Collective Bargaining Act. Appellant first contends that R.C. 4117.14(1) intrudes upon appellant’s powers of local self-government. Appellant cites Sections 3 and 7, Article XVIII of the Ohio Constitution and urges that R.C. 4117.14(1) violates those sections by usurping áppellant’s power to set the wages of its safety forces.

As a second proposition, appellant challenges R.C. 4117.14(1) on the basis that the section unconstitutionally delegates municipal legislative authority. Appellant contends the section fails to establish a procedure whereby the exercise of discretion by the conciliator can be effectively reviewed.

Appellees counter these arguments by maintaining that R.C. 4117. 14(1) was enacted by the legislature for the protection of the health, safety, and welfare of the citizens of Ohio and, as such, is a general law applicable to municipalities, notwithstanding Section 3, Article XVIII of the Ohio Constitution. It is appellees’ contention that R.C. Chapter 4117 (and specifically R.C. 4117.14[I]) address a matter of statewide concern and that the results of the collective bargaining process have significant extraterritorial effects which impact on the general public of the state more than the residents of any single municipality.

Appellees also contend that no municipal legislative authority is being delegated by the Act because the state statute (R.C. Chapter 4117) takes precedence over any conflicting legislation of a municipality. Further, appellees urge that in any event, it is permissible for the General Assembly to delegate discretionary functions to administrative officers so long as the delegation is accompanied by certain procedural safeguards.

Finally, appellees maintain that none of the discussion concerning home rule or unlawful delegation of legislative authority has any significance because Section 34, Article II of the Ohio Constitution clearly permits the General Assembly to pass laws providing for the comfort, health, safety and general welfare of all employees. Appellees contend that the additional language found in Section 34, Article II that no other provision of the Constitution shall impair or limit this power of the legislature ends the question.

A

Delegation of Municipal Legislative Authority

We first deal with appellant’s argument that R.C. 4117.14(1) constitutes an impermissible delegation of municipal legislative authority to the conciliator.

In Blue Cross of N.E. Ohio v. Ratchford (1980), 64 Ohio St. 2d 256, 18 O.O. 3d 450, 416 N.E. 2d 614, a case which both sides cite, this court held:

“A statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively.” Id. at syllabus.

It can readily be seen that R.C. 4117.14 does not unconstitutionally delegate legislative power within the meaning of Ratchford. A review of the statute reveals that it provides the conciliator with detailed guidelines under which to proceed. R.C. 4117.14(G)(7) provides as follows:

“After hearing, the conciliator shall resolve the dispute between the parties by selecting, on an issue-by- issue basis, from between each of the party’s [sic] final settlement offers, taking into consideration the following:

“(a) Past collectively bargained agreements, if any, between the parties;

“(b) Comparison of the issues submitted to final offer settlement relative to the employees in the bargaining unit involved with those issues related to other public and private employees doing comparable work, giving consideration to factors peculiar to the area and classification involved;

“(c) The interests and welfare of the public, the ability of the public employer to finance and administer the issues proposed, and the effect of the adjustments on the normal standard of public service;

“(d) The lawful authority of the public employer;

“(e) The stipulations of the parties;

“(f) Such other factors, not confined to those listed in this section, which are normally or traditionally taken into consideration in the determination of the issues submitted to final offer settlement through voluntary collective bargaining, mediation, fact-finding, or other impasse resolution procedures in the public service or in private employment.” (Emphasis added.)

It is difficult to conceive how the General Assembly could have formulated more “practical” standards or a more “intelligible principle” within the meaning of Ratchford, supra, particularly given the purpose of the Act, which is to “promot[e] orderly and constructive relationships between all public employers and their employees.” R.C. 4117.22. Finally, after all this, the decision of the conciliator is expressly made subject to judicial review under R.C. Chapter 2711. R.C. 4117.14(H).

Accordingly, we find appellant’s second proposition of law not well-taken.

B

Home Rule

Appellant’s first proposition of law states *

“R.C. 4117.14(1) is unconstitutional because it would deny municipalities their power, guaranteed by sections 3 and 7 of Article XVIII of the Ohio Constitution, to determine municipal safety employee compensation, a power of local self-government.”

Appellant argues that if R.C. 4117.14(1) is constitutional, then for all practical purposes, appellant’s powers of local self-government are nonexistent

Section 3, 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.)

This court has already determined that “[t]he collective bargaining law of the state of Ohio is a law of a general nature. * * *” Dayton F.O.P., supra, at paragraph one of the syllabus. Section 3, Article XVIII explicitly withholds from municipalities the authority to exercise powers or adopt regulations which are in conflict with “general laws.” The home-rule amendment, Section 7, Article XVIII, grants municipalities powers of home rule “subject to the provisions of section 3 of this article * * (Emphasis added.) Therefore, the power of home rule is constitutionally limited to powers not in conflict with “general laws.”¹⁴

The parties in the case at bar cite a number of cases from Ohio and foreign jurisdictions in support of their respective positions on the question of home rule and its application to R.C. 4117.14(1). Because we believe that Section 34, Article II of the Ohio Constitution governs this case and, consequently, the home-rule sections do not apply, we make no further comment on the home-rule arguments of the parties.

C

The Ohio Constitution:

Section 34, Article II

Section 34, Article II of the Ohio Constitution provides:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power." (Emphasis added.)

This provision constitutes a broad grant of authority to the legislature to provide for the welfare of all working persons, including local safety forces. Pension Fund, supra. The provision expressly states in “clear, certain and unambiguous language” that no other provision of the Constitution may impair the legislature’s power under Section 34. Id. at 107, 41 O.O. 2d at 412, 233 N.E. 2d at 137. This prohibition, of course, includes the “home rule” provision contained in Section 3, Article XVIII. Id. at 106, 41 O.O. 2d at 411, 233 N.E. 2d at 137.

R.C. Chapter 4117, the Public Employees’ Collective Bargaining Act, is indisputably concerned with the “general welfare” of employees. Therefore, pursuant to Section 34, Article II, the power of the General Assembly to adopt the Act may not be affected in any way by the “home rule” amendment. The binding arbitration provision of R.C. Chapter 4117 is a valid exercise of the legislative function under Section 34, Article II.

It is argued by appellant that Section 34 has no application to the conciliation statute before us today, since Section 34 was intended to apply only to matters involving a minimum wage. In support of this proposition, appellant cites the debates on Section 34 which occurred when the proposal was presented to the 1912 constitutional convention for consideration. Appellant, in its reply brief, states: “* * * In fact, the entire debate on the amendment concerned its minimum wage provision only.” (Emphasis by appellant.) In support of this statement, appellant cites 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1912) 1328-1338.

We find this statement by appellant’s counsel to be, at best, misleading. The fact that a considerable portion of the debate on Section 34 concerned a minimum wage does not signify that the proposed constitutional amendment only concerned a minimum wage. In fact, a thorough review of the minutes of the constitutional convention makes it abundantly clear that the debate about minimum wage occurred because this was the only part of the proposed amendment to which any delegates took serious exception. There can be no question that the purpose of the proposed constitutional amendment was much broader and that the delegates were fully aware of the scope of the amendment under consideration.

What is now Section 34, Article II of the Ohio Constitution was presented to the convention on January 24, 1912 as Proposal No. 122. 1 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1912) 106. When introduced, it was designated as a proposal “[rjelative to employment of women, children and persons engaged in hazardous employment.” Id. The next day, January 25, 1912, the proposal was referred to the convention’s Committee on Labor. Id. at 118.

Delegate Stilwell, of Cuyahoga County, was the chairman of the Labor Committee. Id. at 1 and 93. After consideration by the committee, on March 19, 1912, Stilwell reported Proposal No. 122 back to the convention with amendments. A specific amendment was to “* * * [sjtrike out all after resolving clause and insert the following:

“ ‘Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.’ ” Id. at 755.

The report was agreed to, the proposal read a second time and, as amended, ordered printed. Id. On April 22, 1912, Proposal No. 122 came before the convention for adoption. 2 Proceedings and Debates, supra, at 1328. The proposal was read a second time. Delegate Farrell from Cuyahoga County, whose occupation was listed as “waiter,” spoke in favor of the proposal. Id. at 1328-1332. Mr. Farrell said: “Since this proposal has been on the calendar I have heard some little objection to it, especially with reference to the clause which would permit the legislature to pass minimum wage legislation, and to that clause I intend to direct my remarks exclusively. * * *” (Emphasis added.) Id. at 1328.

It is clear that Mr. Farrell, who was also a member of the Committee on Labor, knew that the proposal did not concern just a minimum wage. Other delegates spoke for and against the proposal. Probably the most notable was Judge Dennis Dwyer from Montgomery County, whose occupation was listed as “lawyer.” Judge Dwyer, also a member of the Committee on Labor, was a man past eighty years of age and had been accorded the honor of being unanimously elected by his fellow delegates as the Temporary Chairman of the Convention. 1 Proceedings and Debates, supra, at 23.

Judge Dwyer certainly knew the proposal was about more than a minimum wage. In a moving speech in support of the proposal, he said, in part: “[therefore, give your employes fair living wages, good sanitary surroundings during hours of labor, protection as far as possible against danger, a fair working day. Make his life as pleasant for him as you can consistent with his employment. * * *” 2 Proceedings and Debates, supra, at 1332-1333. After a heated debate, centering on whether the minimum wage clause should be included in the proposal, the proposal as submitted was approved with eighty voting yea and thirteen voting nay. Id. at 1338. Under the rules, the proposal was then referred to the Committee on Arrangement and Phraseology. Id.

On May 22, 1912, the Committee on Arrangement and Phraseology reported Proposal No. 122 to the convention and recommended its passage after amending it to strike out the previous title and inserting therefor “* * * section 34 * * * article II * * * —• Welfare of employes.” The report was approved, on this seventy-third day of the convention, and it was ordered that the proposal be placed on the convention’s calendar the next day for the third reading. Id. at 1742.

The next day, May 23, 1912, Proposal No. 122 was read for the third time. Delegate Harris from Hamilton County, whose occupation was listed as “capitalist” (the only such listing among the one hundred nineteen delegates) offered an amendment. The amendment was to “[s]trike out in line 6 ‘a minimum wage.’ ” Id. at 1784. In presenting the amendment, Mr. Harris said: “The proposal with the exception of minimum wage seems so sound that I am very anxious to vote for it, and even if my amendment is tabled I state that I shall vote for same because it contains so much that appeals to me that I do not want to oppose it * * *.” Id. There was no question in Delegate Harris’ mind that Proposal No. 122 concerned far more than just a minimum wage.

After another heated debate, one of the delegates moved to table Mr. Harris’ amendment. Id. at 1786. The motion to table was carried and the question of whether Proposal No. 122 should pass was then submitted to the convention. By. a vote of ninety-six yeas and five nays, the proposal was adopted, id., and today appears in our Constitution as Section 34, Article II.

But none of this really makes any difference. The language of Section 34 is so clear and unequivocal that resort to secondary sources, such as the constitutional debates, is actually unnecessary. Where the language of a statute or constitutional provision is clear and unambiguous, it is the duty of courts to enforce the provision as written. Bernardini v. Bd. of Edn. (1979), 58 Ohio St. 2d 1, 12 O.O. 3d 1, 387 N.E. 2d 1222. “Debates of a constitutional convention are proper matter for consideration where they throw light on the correct interpretation of any provision of the Constitution, but if the provision is clear and may be read without interpretation, the discussion leading to its adoption is of no value, nor are the various statements by the members of the convention and the resolutions offered during the convention determinative of the meaning of the amendment.” State, ex rel. Harbage, v. Ferguson (1941), 68 Ohio App. 189, 22 O.O. 139, 36 N.E. 2d 500, paragraph one of the headnotes, appeal dismissed (1941), 138 Ohio St. 617, 22 O.O. 152, 37 N.E. 2d 544.

Regardless of what was said or not said during the debates, the unalterable fact remains that Section 34, as it was ultimately adopted, transcends the limitations urged by appellant. If the framers of our Constitution had intended this section to apply only to minimum wage, almost half of the forty-one words contained in this section must be regarded as mere surplusage, since it further provides that laws 'may be passed “fixing and regulating the hours of labor * * * and providing for the comfort, health, safety and general welfare of all employes * * *.” Are we to believe, as appellant apparently does, that these words were not intended to have meaning? To ask the question is to answer it.

The same may be said of the final phrase of Section 34, which states that “* * * no other provision of the constitution shall impair or limit” the General Assembly’s power to pass laws concerning the welfare of employees, ¹⁵ How can it be seriously maintained that the home-rule amendment is somehow exempt from this mandate? Section 34 could not be clearer or more unequivocal. Appellant’s contention, that Section 34 does not mean what it so obviously says, is indefensible. This is especially true when one considers that this court has already held that Section 34 contains “clear, certain and unambiguous language” providing that “no other provision of the Constitution may impair the intent, purpose and provisions” of Section 34, including the home-rule amendment. Pension Fund, supra, at 107, 41 O.O. 2d at 412, 233 N.E. 2d at 137.

A review of the facts and holding in Pension Fund, supra, is extremely instructive. There, the municipality challenged the constitutionality of several sections of R.C. Chapter 742, which created a state-controlled disability and pension fund for the benefit of police and firefighters and 'their dependents. It was contended that these sections, and particularly R.C. 742.26, which required cities to transfer the assets of their police and firefighters’ relief and pension funds to the state fund, violated various constitutional provisions, including the “home rule” sections. This court rejected these contentions, citing Section 34, Article II of the Ohio Constitution. Id. at 107, 41 O.O. 2d at 412, 233 N.E. 2d at 137. In so holding, this court ruled:

“The creation and the administration, management, and the control of a state police and firemen’s disability and pension fund, as provided in Sections 742.01 to 742.49, inclusive, of the Revised Code, is [sic] a valid enactment of the General Assembly by virtue of the provisions of Section 34, Article II of the Constitution of Ohio.” Id: at syllabus.

A closer look at the Revised Code sections upheld in Pension Fund against a home-rule attack reveals that these sections were considerably more intrusive on a municipality’s power of home rule than the conciliation statute before us today. For example, at the time of the Pension Fund decision, R.C. 742.26 provided that “* * * the assets and liabilities of each police relief and pension fund * * * and of each firemen’s relief and pension fund * * * shall be transferred to the police and firemen’s disability and pension fund * * *” controlled by the state pursuant to R.C. 742.03. (131 Ohio Laws 303-304.) Former R.C. 742.27 provided that upon such transfer, the board of trustees of the state fund acquires “* * * all rights, interest and ownership in all of such assets.” (131 Ohio Laws 304.) R.C. 742.30 required cities transferring superseded funds to discharge all liabilities of such funds at certain minimum annual rates, beginning with two percent per year in 1969, and increasing to five percent per year in 1972 and each year thereafter for fifty-five years. (132 Ohio Laws, Part I, 395-396.) R.C. 742.33 and 742.34 mandated that cities shall pay to the state fund an amount to be determined by the state board, and even that such payments shall be made from the municipality’s general fund. (131 Ohio Laws 308.)

Who were the members of this state board that had all this power and authority to order municipalities to pay out of their general funds whatever amounts the board determined would be necessary to keep the fund financially sound? The answer was to be found in R.C. 742.03: the board consisted of the Attorney General, the Auditor of State, a city fiscal officer, two city police department employees, and two city or township fire department employees. (132 Ohio Laws, Part I, 394-395.) This court, in 1967, upheld this provision as being- within the authority of the General Assembly under the powers granted to it by Section 34, Article II of the Ohio Constitution. Tbe home-rule amendment had to yield to the omnibus mandates of Section 34 and to the will of the General Assembly.

It can readily be seen that the statutory scheme upheld in Pension Fund constituted a substantial infringement of local powers of self-government. Cities were ordered by the state to surrender their own funds to the state on terms fixed by the state. Municipalities’ “power of the purse” was not merely limited; it was bypassed completely. Under the conciliation statute before us today, the municipality retains considerably more authority. With regard to wages,- as well as other questions, the municipality may negotiate an appropriate settlement with safety forces employees. It is only when negotiations break down completely that the conciliator steps in, and even then the options from which the conciliator must choose are controlled to a large extent by the municipality. See R.C. 4117.14(G)(7). The Pension Fund holding that Section 34, Article II overrides the home-rule provision and that the state may intrude on local self-government to the degree allowed in that decision is doubly persuasive when applied'to the case now before us. Can it be seriously argued that the conciliator provision now under scrutiny is more intrusive than the provisions upheld in Pension Fundi The answer is obvious.

Nor can the Pension Fund case be distinguished from the instant case on the basis that pensions are not “wages,” and therefore not subject to mandatory collective bargaining under R.C. 4117.08(A). First, that statute requires collective bargaining of “[a]ll matters pertaining to wages, hours, or terms and other conditions of employment * * *.” (Emphasis added.) Few would argue that pensions do not fall within this category. Second, the federal courts which have addressed the question under the National Labor Relations Act have overwhelmingly held that the term “wages” includes pensions. 18D Kheel, Business Organizations (1984), Section 19.02. See, also, In re Inland Steel Co. (1948), 77 NLRB 1.

It is quite interesting to note that this court, at the time the Pension Fund case was decided, was composed of Chief Justice Taft and Associate Judges Zimmerman, Matthias, O’Neill (later Chief Justice), Herbert (who wrote the opinion), Schneider and (Paul W.) Brown. That court unani mously found that Section 34, Article II was controlling.

Appellant’s response to the Pension Fund case appears in its reply brief:

“Rarely cited in the reported case law, * * * [Pension Fund] is an aberration. The extravagant discussion of Article II, Section 34 and municipal home rule in the two and one/half page opinion was wholly unnecessary because there was no home rule issue facing the court. In short, the controversy was a sham; both this Court and Ohio home rule law were its victims. * * *”

In effect, appellant is saying the Pension Fund court was duped; the court did not recognize the issue before it and engaged in “unnecessary,” “extravagant discussion.” We do not look kindly on appellant’s characterization of the Pension Fund court. Balancing our knowledge of the fine legal minds serving as members of the Pension Fund court against appellant’s obvious vested interest in the outcome of the case at bar, it is not difficult to determine where objectivity concerning the issues and holding of Pension Fund would most likely lie. In any such contest, appellant loses hands down.

In sum, Section 34, Article II of the Ohio Constitution and the Pension Fund case are clear and unequivocal. Together they dictate the result in this case.

Appellant’s first proposition of law is not well-taken.

D

City Budgets and the SERB Experience

In an attempt to defeat the conciliation provisions of R.C. Chapter 4117, appellant points to the alleged power of the conciliator to bankrupt a municipality by adopting a union salary demand which the employer cannot afford. This argument, which has a certain potency at first blush, is, in reality, unfounded. The employer’s ability to pay is a mandatory consideration for the conciliator under the provisions of R.C. 4117.14(G)(7). That statute directs that the conciliator “* * * shall resolve the dispute between the parties by selecting, on an issue-by-issue basis, from between each of the party’s [sic] final settlement offers, taking into consideration the following:

a* x *

“(c) * * * the ability of the public employer to finance and administer the issues proposed * * (Emphasis added.)

It could perhaps be argued that this statutory provision does not prevent a conciliator from adopting an employee proposal which would spell financial disaster for the public employer. However, the doomsayers who warn of such calamities are ignorant of the realities. Past practice has demonstrated that conciliators do not hesitate to reject an employee demand which they find to be beyond the financial means of the particular public employer. Likewise, in the fact-finding stage, fact-finders have demonstrated a readiness to accept the employer’s claim of inability to pay.

For example, in a dispute between the Jackson County Sheriff and the Fraternal Order of Police (“FOP”), the conciliator rejected the final wage offer of the FOP on the basis that the public employer was in a state of financial distress, and could not afford the increase. In the Matter of Conciliation Between the Jackson County Sheriff and Fraternal Order of Police (May 14, 1987), SERB case Nos. 86-MED-09-0900, 86-MED-09-0901, and 86-MED-09-0902. Similarly, a conciliator rejected a pay increase in a dispute between the FOP and the Trumbull County Sheriff’s Department, again on the ground that the employer had an inability to pay. In the Matter of Im passe Between Trumbull County Sheriffs Department and Fraternal Order of Police (Mar. 16, 1987), SERB case Nos. 86-MED-09-918 through 922. The employer’s inability fo pay was also the basis for the rejection of pay increases in the following decisions by fact-finders: In the Matter of Impasse Between the City of Cortland and the Fraternal Order of Police (July 19, 1986), SERB case No. 86-MED-04-0465; In the Matter of Sheriff of Wyandot County and Fraternal Order of Police (Dec. 13, 1985), SERB case Nos. 85-MF-09-4238 and 85-MF-09-4239; In the Matter of City of Washington Court House and Internatl. Assn. of Firefighters, Local 2474 (Nov. 1, 1984), SERB case No. 84-MF-05-1170. Thus, it can be seen that where an employer’s claim- of inability to pay is bona fide, it is not likely to be ignored. In fact, the above decisions show that fact-finders and conciliators have been very careful to consider claims of financial incapacity, and will readily accept these claims in appropriate cases. Thus, when one understands the SERB experience with these cases, the dire predictions of municipal bankruptcies caused by unbridled conciliators 'may be put into proper perspective.

V

Public Policy

By enacting R.C. 4117.14(1), the General Assembly recognized the need to provide some mechanism (other than the strike option) to bring about final resolution of an impasse in bargaining between a public employer and its safety forces. The public policy underlying this binding arbitration requirement is compelling.

R.C. 4117.14(1) provides that the decision of a conciliator in a collective bargaining dispute between a public employer and its safety forces “* * * constitutes a binding mandate to the public employer and the exclusive representative [of such safety forces] to take whatever actions are necessary to implement the award.” Conciliation is the final of several steps which the parties may take under R.C. 4117.14 in their effort to resolve a collective bargaining dispute. Public employees who are not members of safety forces need not proceed to binding conciliation. Such employees have the option to strike under R.C. 4117.14(D)(2), an option which was not granted to safety forces. In withholding the right to strike from such employees, the General Assembly was obviously concerned with the dangers such strikes would pose to the public safety and welfare. The General Assembly wisely recognized, however, that without the right to \ strike, safety forces would have little strength to bring to the bargaining table. To compensate, the legislature provided for binding arbitration so that members of a safety force and their employer may obtain independent, binding review of their contract proposals. The decision of the conciliator is binding on both parties, whatever that decision may be. For safety forces, R.C. 4117.14(1) is the heart of the Act. Absent binding conciliation, the bargaining rights of safety forces, would become virtually useless.

Given the history of public employer-safety employee relations in this state prior to the passage of R.C. Chapter 4117,¹⁶ the wisdom of the General Assembly in promulgating the Act becomes even more obvious. During those turbulent days, public employees, including safety forces, were also prohibited from striking, but frustrations stemming from employee powerlessness frequently erupted into illegal strikes. The General Assembly has put an end to such chaos, particularly where safety forces are concerned, by enacting R.C. Chapter 4117, the Public Employees’ Collective Bargaining Act. In doing so, the General Assembly has obviously decided that binding conciliation is the most appropriate method for dealing with impasses between safety forces and their employers. Whether we, as members of this court, agree or disagree with that assessment is, or should be, irrelevant. As recently stated by Justice Wright, “it is not the function of the courts to decide constitutional cases on the basis of.its members’ personal views. This court must give the laws enacted by our elected representatives every intendment of constitutionality. * * *” Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208 (1988), 37 Ohio St. 3d 56, 64, 524 N.E. 2d 151, 157 (Wright, J., concurring in the syllabus and in the judgment).

Conclusion

Accordingly, we hold that the binding mandate provided in R.C. 4117.14 (I) is not an unlawful delegation of legislative authority as it serves the purpose of promoting orderly public sector labor relations, contains sufficient procedural standards and safeguards and provides for effective judicial review.

We further hold that the Ohio Public Employees’ Collective Bargaining Act, R.C. Chapter 4117, and specifically R.C. 4117.14(1), are constitutional as they fall within the General Assembly’s authority to enact employee welfare legislation pursuant to Section 34, Article II of the Ohio Constitution. Section 3, Article XVIII of the Ohio Constitution, the home-rule provision, may not be interposed to impair, limit or negate the Act.

The judgments rendered by this court in Rocky River v. State Emp. Relations Bd. (1988), 39 Ohio St. 3d 196, 530 N.E. 2d 1, and Rocky River v. State Emp. Relations Bd. (1988), 40 Ohio St. 3d 606, 533 N.E. 2d 270, are vacated and held for naught. Further, any language in Twinsburg v. State Emp. Relations Bd. (1988), 39 Ohio St. 3d 226, 530 N.E. 2d 26, which is inconsistent with this opinion is overruled.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, H. Brown and Res-nick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.

Footnotes

7

See, as examples, the editorial of the Cleveland Plain Dealer, Feb. 14, 1989, at 4B, and the editorial of the Dayton Daily News, Feb. 20, 1989, at 10A.

8

See The Constitution of the United States of America: Analysis and Interpretation (1987) 725. According to the 1986 supplement to this source, at 143, the court had issued one hundred eighty-four overruling opinions, the most recent on the list being Batson v. Kentucky (1986), 476 U.S. 79, which overruled Swain v. Alabama (1965), 380 U.S. 202, in part.

9

Brief for Appellees on Reargument at 59-60 and 76-79, Briggs v. Elliott (1954), 347 U.S. 483.

10

Id. at 580 (Rehnquist, J., dissenting); id. at 589 (O’Connor, J., dissenting).

11

See James C. Rehnquist, The Power That Shall Be Vested In a Precedent: Stare Decisis, the Constitution and the Supreme Court (1986), 66 B.U.L. Rev. 345, 371-375.

12

See Welch v. Texas Dept. of Highways & Pub. Transp. (1987), 483 U.S. _, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (overruling the quasi-constitutional holding in Parden v. Terminal Ry. of Alabama Docks Dept. [1964], 377 U.S. 184); Solorio v. United States (1987), 483 U.S.___, 97 L. Ed. 2d 364, 107 S. Ct. 2924 (overruling O’Callahan v. Parker [1969], 395 U.S. 258); Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue (1987), 483 U.S. 232 (overruling General Motors Corp. v. Washington [1964], 377 U.S. 436); Puerto Rico v. Branstad (1987), 483 U.S. 219 (overruling Kentucky v. Dennison [1861], 65 U.S. [24 How.] 66).

13

Stone, Precedent, the Amendment Process, and Evolution in Constitutional Doctrine (1988), 11 Harv. J. of Law and Pub. Policy 67, 72.

14

But, see, State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 5 O.O. 2d 481, 151 N.E. 2d 722, paragraph four of the syllabus, which, however, needs to be read in context with the issues involved in that case. Canada is a case involving civil service and concerns Section 10, Article XV of the Ohio Constitution. It does not deal in any way with Section 34, Article II, which is so central to the case before us today.

In any event, a review of the constitutional debates concerning Section 3, Article XVIII reveals that the narrow interpretation adopted by the Canada court is unwarranted. Mr. George W. Knight, a convention delegate and a chief proponent of the amendment, characterized its purpose as follows: “[T]his proposal undertakes * * * to provide that municipalities shall have the power to do those things which are not prohibited, that is, those things with reference to local government, with reference to the affairs which concern the municipality, which are not forbidden by the lawmaking power of the state, or are not in conflict with the general laws of the state under the police power and the general state regulation. * * *” (Emphasis added.) 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913) 1433. Obviously, this characterization of Section 3, Article XVIII is totally inconsistent with the interpretation espoused by the Canada court.

15

This provision refers only to the power of the General Assembly to pass laws. Fuldauer v. Cleveland (1972), 32 Ohio St. 2d 114, 123, 61 O.O. 2d 374, 379, 290 N.E. 2d 546, 552.

16

In 1972, Ohio was tied for fourth place in the nation in the number of strikes by safety forces. By 1973, Ohio had moved up to second place. There were six strikes by police and firefighters in this state in 1975, again placing Ohio second in the nation in the frequency of such strikes. The next year, 1976, saw the number of safety forces strikes increase by half, to nine. That year, Ohio gained the dubious distinction of ranking first in the nation, a position which we retained for three of the following four years. In 1980, Ohio experienced fifteen strikes by safety forces, involving 2,300 workers and costing 6,800 lost workdays. Work Stoppages in Government, 1972-1980, United States Department of Labor, Bureau of Labor Statistics Reports Nos. 434, 437, 453, 483, 532, 554, 582, 629 and Bulletin No. 2110. Clearly, the situation had reached crisis proportions.