State ex rel. Board of County Commissioners v. Zupancic

581 N.E.2d 1086, 62 Ohio St. 3d 297, 1991 Ohio LEXIS 2973
CourtOhio Supreme Court
DecidedDecember 24, 1991
DocketNo. 90-1615
StatusPublished
Cited by29 cases

This text of 581 N.E.2d 1086 (State ex rel. Board of County Commissioners v. Zupancic) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Board of County Commissioners v. Zupancic, 581 N.E.2d 1086, 62 Ohio St. 3d 297, 1991 Ohio LEXIS 2973 (Ohio 1991).

Opinions

Wright, J.

The sole issue before the court is whether the construction of for-profit, multiunit rental housing constitutes the construction of facilities for commerce or industry under Section 13, Article VIII, Ohio Constitution. The parties agree that if the proposed housing project meets the requirements of Section 13, the issuance of the bonds will meet constitutional muster, and the respondent auditor will be obligated to sign the bonds and affix his seal to them. For the reasons set forth below, we overrule State, ex rel. Brown, v. Beard (1976), 48 Ohio St.2d 290, 2 O.O.3d 438, 358 N.E.2d 569, and hold that construction of for-profit, multiunit, low- and moderate-income rental housing constitutes the construction of facilities for commerce and industry under Section 13. Accordingly, we hold that the proposed construction is a permissible project for which the relator board may issue bonds.

In Beard, we last addressed the issue of whether the construction of low- and moderate-income housing constituted commerce or industry as those terms are used in Section 13, Article VIII.5 In a brief per curiam opinion, we summarily rejected the argument that “moderate and low cost housing is related to industry and commerce to such an extent as to fall within either of those constitutionally designated categories.” Id., 48 Ohio St.2d at 292, 2 0.0.3d at 439, 358 N.E.2d at 570. Although the action in Beard concerned the [300]*300authority of the state to issue bonds for the construction and rehabilitation of multiunit housing under Section 4, Article VIII, and not the authority of a county to issue bonds for a similar project under Section 6, the issue decided in Beard —how Section 13 should be interpreted — is essentially the same as the issue presented in the case sub judice.

As the court of appeals correctly noted, Beard would dispose of the issue before us were we to allow it to stand. Much has transpired since our decision in Beard, and we now review that opinion with the benefit of fifteen years of experience and hindsight. Although we are reluctant to overturn well-established precedent, we are less so in the face of precedent wanting in reason and justification. As Justice Holmes succinctly stated in his concurring opinion in Scott v. News-Herald (1986), 25 Ohio St.3d 243, 254, 25 OBR 302, 311, 496 N.E.2d 699, 709:

“ * * * It does no violence to the legal doctrine of stare decisis to right that which is clearly wrong. It serves no valid public purpose to allow incorrect opinions to remain in the body of our law. * * *”

We now see that Beard, with its conclusory language and its focus on construction activities rather than the postconstruction use of the housing units, was inartfully, if not wrongly, decided.

We begin our analysis with a consideration of what the legislature intended to include in the constitutional categories of commerce and industry when Section 13 was submitted to the voters for their subsequent approval. A longstanding rule of construction mandates that we consider the common and ordinary meaning of the terms contained within our Constitution in order to interpret them properly. Cleveland Tel. Co. v. Cleveland (1918), 98 Ohio St. 358, 368-369, 121 N.E. 701, 704.6

In State, ex rel. Bd. of Commrs. of Preble Cty., v. Mong (1984), 12 Ohio St.3d 66, 12 . OBR 56, 465 N.E.2d 428, we turned to the lexicographers for assistance in defining the common and ordinary meanings of the terms “commerce”, and “industry.” In holding that farming constituted commerce and industry under Section 13, we relied upon the generally accepted definitions of “commerce” as “the buying and selling of goods” and “industry” as “the commercial production of goods.” Id. at 67, 12 OBR at 57, 465 N.E.2d at 429, citing The American Heritage Dictionary (1979) 266, 672, and Webster’s New World Dictionary (2 Ed. 1982) 285, 719. Today, we look to the broader definitions of those terms to include the service industries that for some time [301]*301have formed a substantial part of our state’s and nation’s economies. Turning again to dictionaries, we find “commerce” defined as “[t]he exchange of goods, productions, or property of any kind ” (emphasis added), Black’s Law Dictionary (6 Ed.1990) 269,7 and “industry” defined as “the commercial production and sale of goods and services ” (emphasis added), American Heritage Dictionary (1981) 672.

In adopting those definitions, we conclude that relators’ proposed project would constitute the construction of facilities for industry and commerce under Section 13. The exchange of money for possessory interests in the rental units certainly constitutes “commerce” as that term is commonly used and has been defined. Furthermore, the commercial service of providing and maintaining rental housing constitutes a service industry that would be promoted by the issuance of the bonds in question.8 The proposed issuance of the bonds is proper under the Ohio Constitution.

Our view that the rental industry is commerce is certainly consistent with our prior decision in Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 12 OBR 6, 465 N.E.2d 421. In Roosevelt, we considered the question of whether a multiunit commercial apartment complex constituted residential property for the purposes of a tax reduction factor that was available only to owners of residential property. In holding that the multiunit complexes at issue were not residential, we relied upon our view that the owner’s use of the apartments was “singularly commercial in nature,” id. at 12, 12 OBR at 10, 465 N.E.2d at 426, and that such properties are “utilized in a business or commercial capacity.” Id. at 13, 12 OBR at 11, 465 N.E.2d at 426. For similar reasons we view relators’ proposed construction project as unequivocally commercial and industrial in nature.

[302]*302We are mindful that since Beard, and in response thereto, the electorate has twice amended Article VIII to include provisions, Section 14 and Section 16, that broaden the authority of the state and its political subdivisions to assist in the construction of housing within the state. Section 14 allows the state to issue bonds for multiunit housing for persons over the age of sixty-two, and for single-family, owner-occupied dwellings. Section 16, which became operative on September 1 of this year, permits the state and political subdivisions to make grants, loans, subsidies to loans, loans to lenders, purchase of loans, and guarantees of loans to aid the housing industry in Ohio, and permits the state to issue bonds for that purpose. Appellee auditor argues that the narrow focus of these subsequent amendments indicates that the people of Ohio never intended counties to have the authority to issue bonds to support loans to construct rental housing under Section 13. Had the people wanted the counties to have such authority, the auditor contends, they would have amended the Constitution accordingly.

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Bluebook (online)
581 N.E.2d 1086, 62 Ohio St. 3d 297, 1991 Ohio LEXIS 2973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-board-of-county-commissioners-v-zupancic-ohio-1991.