Maloney v. Rhodes

345 N.E.2d 407, 45 Ohio St. 2d 319

Opinions

O’Neiul, C. J.

The first question presented for determination may be stated thus: Is the Secretary of State constitutionally obligated to file a law passed by both Houses of the General Assembly and signed by the Speaker of the House and the Governor of the state when it is properly delivered to him for filing?

The answer to that question is, “yes.”

The judgment of the Court of Common Pleas reads, in part, as follows:

“2. The court further finds * * * that Amended House Bills Nos. 18 and 44; Substitute House Bill No. 43, and the Amended Senate Bills Nos. 3, 4 and 5 are incomplete legislation and ineligible for filing with the Ohio Secretary of State;

“3. The court further finds that James A. Rhodes, Governor of Ohio, and his successors, agents and employees should be and they hereby are permanently enjoined from signing and/or filing with the office of the Secretary of State any or all of laws aforesaid * * * and that Ted W. Brown, Secretary of State, and his successors, agents and employees, should be and they hereby are permanently enjoined from accepting for filing any of the said laws.”

That judgment was affirmed by the Court of Appeals by judgment entry as follows:

“ * * * it is the judgment and order of this court that the judgment of the Common Pleas Court of Franklin County, Ohio is affirmed.”

In the instant cause, Governor Gilligan signed the bills and, under the Constitution, was required to file them with the Secretary of State, which he attempted to do. Under the Constitution, the Secretary of State was required to file them, which he refused to do on the ground that they were invalid because they did not contain the signature of the President of the Senate, which is a judicial decision.

The plain provisions of Section 16, Article II state:

“If the Governor approves am, act, he shall sign it, it becomes law and he shall file it with the Secretary of State.

“If he does not approve it, he shall return it with his objections in writing, to the house in which it originated * * *.

“If a bill is not returned by the Governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the General Assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the Secretary of State. The Governor shall file with the Secretary of State every bill not returned by him to the house of origin that becomes law without his signature.” (Emphasis added.)

The language of Section 16, Article II of the Constitution is unmistakably clear.

The Secretary of State has no option. The Secretary of State is obligated by the Constitution and his oath of office to file the law when it is presented to him for filing. It is a ministerial act. It is not discretionary. State, ex rel. Marcolin, v. Smith, Secy. of State (1922), 105 Ohio St. 570. In the opinion by the court, it is stated, at page 572, as follows:

“It has thus become the established law of this state that no officer or tribunal may interfere either with the enactment of laws or the amendment of the constitution while the same is in process, upon the ground that such legislation, if enacted, or constitutional amendment, if adopted, will be in conflict with the constitution, state or federal. These questions are and must necessarily be reserved for consideration and determination after the legislative or constitution-making body shall have fully performed its function and such new law or constitutional amendment shall have become effective.” (Emphasis added.)

The controlling rule of law on the issue in the instant case is succinctly stated in State, ex rel. Marcolim, v. Smith, Secy. of State, supra, at page 590, by Wanamaker, J., in his concurring opinion, in the following language:

“Under the constitution the secretary of state is made an executive officer. The question of constitutionality, which the minority seek to raise and decide, certainly is of a judicial character, not executive. The secretary of state is not vested with any jurisdiction to determine judicial questions dealing with the constitutionality of any law. His duties are merely ministerial in this respect, not discretionary.”

‘ ‘ Ministerial act ’ ’ is defined in Black’s Law Dictionary (4 Ed.), at page 1148, as follows:

‘ ‘ One which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard: to or the exercise of his own judgment upon the propriety of the act being done.”

The Ohio Constitution, Section 1 of Article III, in pertinent part, provides:

“The executive department shall consist of a Governor * * * Secretary of State * * *.”

The Secretary of State has no judicial power, authority or jurisdiction to declare a law constitutionally invalid or to refuse to file it. Mandamus will lie to compel him to perform the official act of accepting and filing the law. Section .16, Article II, Ohio Constitution. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, paragraph one of the syllabus.

The next question to be determined is: Was Governor Rhodes constitutionally obligated to file with the Secretary of State the laws passed by both Houses of the General Assembly, signed by the Speaker of the House, and timely signed by his duly elected and qualified predecessor in the office of Governor?

The answer is, “yes.” Governor Rhodes was constitutionally obligated to file the laws with the Secretary of State. State, ex rel. Marcolin, v. Smith, supra.

The language of the Constitution is unmistakably clear that the Governor, who is the head of the executive department of government, Section 1, Article III, Ohio- Constitution, has but three options-with regard to bills sent to him for signature. (1) He may sign if he approves the bill, in which case he is required to file'the law with the Secretary of State; (2) he may veto if he disapproves the bill, in which case he is required to return it with his objections to the house of the General Assembly in which it originated; (3) he may refuse to sign or veto the bill, in which case at the end of ten days after the bill was presented to him it becomes law (unless the General Assembly adjourns within the ten day period) and he is required to file it with the Secretary of State. If the General Assembly adjourns within the ten day period, it becomes law unless the Governor, within ten days of the adjournment, files it with his objections in writing in the office of the Secretary of State. The Governor is required to file with the Secretary of State every bill which becomes law without his signature.

The Governor has no judicial power, authority or jurisdiction to declare a bill constitutionally invalid and hold possession of it. He has only the executive power to sign, veto, or refuse to sign or veto, and the constitutional obligation to file the law or bill either with the Secretary of State or the house where the bill originated. State, ex rel. Marcolim, v. Smith, supra.

A successor Governor is constitutionally obligated to present to the Secretary of State a law timely signed by his duly elected and qualified predecessor.

To hold otherwise would violate the Constitution and the oaths of office of both the Governor and the Secretary of State.

If the Governor or the Secretary of State is authorized to exercise the judicial power to summarily declare a law unconstitutional, chaos will ensue. An attack upon the constitutional validity of a law must be made in a proper court. The judicial power to declare a law unconstitutional is exclusively within the judicial branch of government.

In the instant cause, Governor Gilligan signed the bills and, under the Constitution, was required to file them with the Secretary of State, which he attempted to do. Under the Constitution, the Secretary of State was required to file them, which he refused to do on the ground that they were invalid because they did not contain the signature of the President of the Senate, which is a judicial decision. Governor Rhodes, when he received them from the Secretary of State, declined to file them as required by the Constitution for the same reason and kept possession of them, which is a judicial decision as to the validity of the laws.

The Court of Common Pleas should have denied the injunction and ordered the Governor to file the laws with the Secretary of State and ordered the Secretary of State to accept and file the laws. The Court of Common Pleas could then have issued an order staying the effect of the laws until the court had determined their constitutional validity.

The Court of Appeals should have reversed the judgment of the Court of Common Pleas issuing the injunction and ordered the Governor to file the laws with the Secretary of State and the Secretary of State to accept and file them. The Court of Appeals could then have issued an order staying the effect of the laws until their constitutional validity was determined by that court.

The next question to be determined is: Are the laws, enacted by the passage by the General Assembly of the six bills with which the court is concerned in this case and the affixing of the Governor’s signature to each bill, constitutionally invalid because the mandatory signature-certification, by the President of the Senate, that the “procedural requirements for passage have been met, ’ ’ as required by Section 15(E) of Article II of the Constitution does not appear on any bill?

The appellants contend that the issue is whether the six laws passed by the General Assembly are invalid because they lack the Lieutenant Governor’s signature.

That statement of position is not quite accurate because it is the signature-certification by the Lieutenant Governor as the President of the Senate that is required by the Constitution.

The law on the constitutional requirement of a certification has been settled in this state since 1887. State v. Kiesewetter (1887), 45 Ohio St. 254; Ritzman v. Campbell (1915), 93 Ohio St. 246. The court, in the second paragraph of the syllabus of Kiesewetter, stated as follows:

“The bill, not being authenticated, as required by Section 17, of Article 2 [now amended as Section 15, Article II], of the constitution, which provides that ‘the presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the General Assembly,’ did not become a law.”

It should be noted that in 1887 the Governor had no authority to sign or veto an act passed by the General Assembly.

The appellants rely heavily for support of their position upon the Ohio Constitutional Revision Commission, Recommendations for Amendments to the Ohio Constitution, Part I, Administration, Organization and Procedures of the General Assembly (1971). However, in the discussion comparing Section 15(E) of Article II, adopted May 8, 1973, with its predecessor, Section 17 of Article II, it is stated, under the heading Intent of Commission, at page 48:

“ * * * The presiding officer will be able to sign bills in his office instead of being required to sign them in chamber. Prom a practical standpoint, this is the only major change foreseen.”

The appellants contend that Section 15(E), Article II of the Ohio Constitution is a directory provision, and that the presence or absence of the Lieutenant Governor’s signature affects the law’s validity not in the least.

Appellants, in support of their position that the six laws are not invalid because they lack the President of the Senate’s signature, argue that the only purpose of the signature requirement is to inform the Governor that in each house the bill received three readings

Footnotes

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* and passed by a constitutional majority.

That position is untenable. Section 15(E) requires a certification that the procedural requirements for passage have been met. There is no basis for the argument that the only purpose to be served by the signature-certification is to so inform t'he Governor, other than the language which says that when the certification has been made the bill shall be presented forthwith to the Governor for his approval. Appellants argue that nothing more can be done by the General Assembly with regard to the bill and, therefore, the certification is to inform the governor exclusively. Not so.

The temporary rules of the Senate, Ohio Senate Journal, January 6, 1975, Rule 68, page 20, provide for a motion to reconsider to be made only by a Senator who voted with the prevailing side, which motion must be made within the next two legislative days of the Senate after the vote on the bill was taken. There is a similar rule in the House. In this case that means that since all six bills were passed in the houses on Friday, January 10, if the clerk had presented the bills to the President of the Senate on January 11, the day the Governor received them for his signature, and the President of the Senate had discovered an error in the procedures with regard to the passage of one of the bills and called it to the attention of the membership of the house in which it passed on January 10, the bill could have been reconsidered that day (January 11) and the procedure corrected. This has happened on infrequent occasions in the General Assembly.

There is no merit in the appellants’ contention that the certification by the President of the Senate is limited to procedural requirements for passage set forth in the Constitution. Again, the appellants rely for this position exclusively upon the report of the Constitutional Revision Commission. However, the words of the Constitution itself control (see State, ex rel. Wallace, v. Celina [1972], 29 Ohio St. 2d 109, 112), and Section 15(E) does not limit “the procedural requirements for passage” to be met to “constitutional procedural requirements for passage” to be met.

The reason this argument is made by appellants is that they are attempting to establish that the President of the Senate conld determine whether the constitutional procedural requirements for passage had been met without having possession of the enrolled bills. Appellants claim that this determination could be made by examining copies of the Senate Journal for the appropriate days. It is in this way that appellants attempt to justify their refusal to give the enrolled bills to the President of the Senate for his personal examination before certifying by signing that the procedural requirements for passage have been met.

It is part of the responsibility of the President of the Senate, under the settled law of this state, to examine the record in the General Assembly to determine whether the procedural requirements for passage have been met. He certifies the bills and his certification is for the information of the Governor, the information of the General Assembly and for the benefit of the ¡oublic. It indicates to those who are interested whether or not the legislation has been properly passed. The public can then decide whether to contact the Governor to urge his veto or his signing of the bill.

It is clear that if the President of the Senate discovered that a procedural requirement had not been met in passage of a bill, he could call attention of the General Assembly to that fact, and if the time within which a reconsideration might be sought had not expired, the procedural defect might be corrected.

The appellants further contend that the Senate has the right and the duty, under Section 6, Article II of the Ohio Constitution, and under rules of parliamentary procedure, to protect the integrity of its processes from the nonfeasance of its presiding officers. It is asserted that the Senate may take such action without the intervention of any other branch of government.

There is no merit to that contention. Section 6, Article II of the Ohio Constitution does not so provide. An examination of the Constitution and the decided case law of this state indicates that the opposite is true. The provisions in Section 15 of Article II of the Ohio Constitution are designed expressly to guarantee the integrity of the legisla tive process. These provisions place a responsibility upon the presiding officer of each house to certify, by his signature, that the integrity of the legislative process has not been violated, either inadvertently or deliberately, by the members or employees responsible for seeing to it that the General Assembly adheres to the procedural requirements for passage of a bill that have been established by law.

In addition, the constitutional responsibility of the presiding officers of each house to sign a certification where all of the procedural requirements for passage have been met is a ministerial duty. It is mandatory. It can not be used as a veto power or a power with which to thwart the prompt passage of legislation. In Mason, Manual of Legislative Procedure (1970), Section 575, it is stated:

“Where a presiding officer is required to sign a bill or ordinance to authenticate its passage, the act of signing is simply ministerial and not an exercise of legislative discretion [and] therefore mandamus will lie to compel its performance. To hold otherwise would give the presiding officer, in effect, a veto upon the acts of the legislative body.”

Mandamus will lie to compel the performance of this clear legal duty by a public officer. In mandamus an order may issue to a presiding officer to show cause why he has not signed. State, ex rel. Pressley, v. Indus. Comm., supra (11 Ohio St. 2d 141).

In the instant cause, the Clerk of the Senate and the leaders of the majority party were fearful that if they delivered the enrolled bills to the President of the Senate for his examination and signature-certification, as required by the Constitution, he would decline to sign, but retain possession of the enrolled bills until the term of the Governor had expired and the succeeding Governor, of a different political party, had assumed the office. This they felt would be fatal to the bills because they were fearful that the succeeding Governor would veto the bills and because the majority party lacked one vote of having sufficient members of its own party in the House of Representatives to override a veto. Thus, the focus of this case is the fear which the members of the majority party had that the President of the Senate would not promptly carry out his constitutional duties to certify by signing. The constitutional and orderly way to have proceeded would have been to present the President of the Senate with the enrolled bills and if he had failed, within a reasonable time, to have examined and certified by his signature that the procedural requirements for passage of each bill had been met, to have sought a writ of mandamus in the courts to compel him to perform his constitutional duty. The majority leaders no doubt feared that all of this would take more time than was available because of the imminence of the expiration of the Governor’s term of office.

The constitutional requirement for a signature-certification by the presiding officer of each house, that in the passage of a bill through the two houses of the General Assembly the procedural requirements for passage have been met, is mandatory and the absence of such a signature-certification makes the law enacted by such a bill invalid. State v. Kiesewetter, supra, paragraph two of the syllabus; Ritzman v. Campbell, supra, paragraph two of the syllabus.

Nichols, C. J., in Ritzman, supra, makes it clear that action in the court is the proper way to determine the validity of an act which has been passed but the presiding officer has failed to make a signed certification that the procedural requirements for passage were met, in the following language, at page 252:

“Failure to follow these mandatory provisions must invalidate acts so passed, and there being no other available tribunal, resort must be had to the courts of the state to determine the validity thereof.”

The amendments which were made to Section 17 of Article II when it became Section 15, Article II, made no change in the mandatory requirement that the presiding officer of each house shall sign each bill. In fact, Section 15 is stronger in its mandatory requirement than was Section 17. Section 17 made a mandatory requirement that the presiding officer sign, while Section 15 requires that the presiding officer certify by his signature that the procedural requirements for passage have been met.

The judgment of the Court of Appeals, which affirmed the judgment of the Court of Common Pleas which “permanently enjoined” Governor James A. Rhodes “from signing and/or filing with the office of the Secretary of State any or all of laws aforesaid, to wit: Amended Plouse Bills Nos. 18 and 44; Substitute House Bill No. 43; and Amended Senate Bills Nos. 3, 4 and 5 * * %” and permanently enjoined Ted W. Brown, Secretary of State “from accepting for filing any of the said laws,” is reversed.

Governor James A. Rhodes is hereby ordered to deliver to the Secretary of State the laws which were enacted by the passage of Amended House Bills Nos. 18 and 44, and Substitute House Bill No. 43, and Amended Senate Bills Nos. 3, 4 and 5, by the required majority vote and the affixing of the Governor’s signature to each such bill, and Secretary of State Ted W. Brown is hereby ordered to file such laws.

This court hereby declares constitutionally invalid each law which was enacted upon the passage of Amended House Bills Nos. 18 and 44, Substitute House Bill No. 43, and Amended Senate Bills Nos. 3, 4 and 5, by the required majority in each house of the 111th General Assembly, and the affixing of the Governor’s signature to each such bill, on the ground that the constitutionally mandatory signature-certification of the presiding officer of the Senate does not appear on any of the bills ‘ ‘ to certify that the procedural requirements have been met,” as required by Section 15(E), Article II of the Ohio Constitution.

Judgment accordingly.

Herbert, Stern and W. Brown, JJ., concur. Corrigan, J., concurs in part only in the judgment of affirmance.

Section 15(C), Article II, requires that “every bill shall be considered by each house on three different days * * * .” There is dispute in the record as to whether this requirement was met.