State ex rel. Foreman v. Brown

226 N.E.2d 116, 10 Ohio St. 2d 139, 39 Ohio Op. 2d 149, 1967 Ohio LEXIS 596

• Court: Ohio Supreme Court
• Decided: April 19, 1967
• Docket: No. 40903
• Status: Published

Opinions

Taft, C. J.

It is first contended that there can be no special election on May 2, 1967, because such election has not been validly called.¹

Admittedly, Amended Substitute House Joint Resolution No. 22 by its words specifically calls a special election on May 2, 1967, for submission of the proposed Ohio Bond Commission Constitutional Amendment.

In support of the contention that no special election was validly called for May 2, 1967, it is contended (1) that a special election can only be provided for by statute; (2) that no statute provides for a special election on a proposed constitutional amendment on May 2, 1967, or at any other time²; and (3) that the only statute providing for submission of a constitutional amendment provides for submission thereof at a general election.

However, Section 1 of Article XVI of the Ohio Constitution provides in part:

“Either branch of the General Assembly may propose amendments to this Constitution; and, if the same shall be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be submitted to the electors, for their approval or rejection, on a separate ballot without party designation of any kind, at either a special or a general election as the General Assembly may prescribe. * * *” (Emphasis added.)

These words clearly authorize the General Assembly to prescribe that an amendment to the Constitution, proposed by the General Assembly pursuant to that section, be submitted at a special election on a certain date.

Unlike in many other parts of the Ohio Constitution, Section 1 of Article XVI does not require that this action be “by law, ’ ’ i. e., by enactment of a statute. Cf. Section 16 of Article 1, Section 21 of Article II, Section 22 of Article II, Section 27 of Article II, Section 4 of Article III, Section 8 of Article IV, Section 3 of Article VI, Section 3 of Article XIII, Section 2 of Article XV, Section 3 of Article XV, Section 8 of Article XV, Section 2 of Article XVI, Section 2 of Article XVII, Section 14 of Article XVIII.

Hence, we are of the opinion that the General Assembly may authorize such special election on a certain date by a joint resolution without enacting a statute.

In State, ex rel. Attorney General, v. Kinney, Secy, of State (1897), 56 Ohio St. 721, 47 N. E. 569 (cited in the -dissenting opinion), which involved Section 2 of Article XVI as in force before 1912, there was no constitutional basis whatever for the action which this court held that the General Assembly could not take by a joint resolution.

Of course, the General Assembly could not prescribe, in its resolution proposing a constitutional amendment, that it be submitted at a special election on a certain date, if Section 1 of Article XVT of the Constitution did not state that such amendment “shall be submitted * * * at * * * a special or a general election as the General Assembly may prescribe.”

It may also be noted that, before 1912, Section 1 of Article XVI of the Constitution authorized submission of an amendment proposed by the General Assembly only at “the next election for Senators and Representatives.” The present provision, empowering the General Assembly to prescribe for submission at a special election, was not added until 1912.

It is argued that a joint resolution cannot ordinarily repeal a statute. However, in our opinion, if action, taken by the General Assembly pursuant to Section 1 of Article XVI and authorizing a special election on a certain day, does conflict with an unrepealed existing statute, the action so taken pursuant to specific constitutional authority would require a holding that the statute was unconstitutional so far as it conflicted with such action. In the instant case, it is not necessary for us to make such a holding of unconstitutionality because there is no conflict between any statute and the action taken by the General Assembly in Amended Substitute House Joint Resolution No. 22 in calling a special election.³

The only statute relied upon as preventing such action is Section 3501.02, Revised Code, which reads:

“General elections in the state and its political subdivisions shall be held as follows:

“(A) For the election of electors of President and Vice-President of the United States, in the year 1932 and every four years thereafter;

“(B) For the election of a member of the Senate of the United States, in the years 1932 and 1934, and every six years after each of such years; except as otherwise provided for filling vacancies;

“(C) For the election of Representatives in the Congress of the United States and of elective state and county officers, in the even-numbered years; except as otherwise provided for filling vacancies;

“(D) For municipal and township officers, members of boards of education, members of the State Board of Education, judges and clerks of police and Municipal Courts, in the odd-numbered years;

“(E) Proposed constitutional amendments or proposed measures submitted by the General Assembly or by initiative or referendum petitions to the voters of the state at large may be submitted at the general election in any year occurring at least sixty days, in case of a referendum, and ninety days, in the case of an initiated measure, subsequent to the filing of the petitions therefor. Unless provision is made by law or charter for the submission of a question or issue to the voters of a county, township, city, village, or school district at a special election, no special election shall be called, and the question or issue shall be submitted at a general election.”

If the word “must” or “shall” had been used in the first sentence⁴ of paragraph (E) of that statute instead of “may,” or if the word “only” had there appeared after “may” or after “submitted,” a constitutional question would be presented. However, a mere statutory authorization for submission at a general election cannot be construed as a prohibition of submission at a special election.

The second sentence of that paragraph (E) of the statute obviously applies only to a submission “to the voters of a county, township, city, village, or school district” — not to what is referred to in the first sentence thereof as a submission “to the voters of the state at large.”

It is next contended that Amended Substitute House Joint Resolution No. 22 provides for more than one amendment of the Constitution, contrary to the part of Section 1 of Article XVI which reads:

“When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment, separately.”

Amended Substitute House Joint Resolution No. 22 purports to submit “a proposition to amend Article VIII [singular] ” and states “the text of said proposed amendment [singular] ” as Section 2i of that Article which is set forth therein, and the schedule in that resolution refers to “this proposed amendment” and “the foregoing proposed amendment [singular].” There is admittedly nothing in Amended Substitute House Joint Resolution No. 22 to indicate an intention to submit, or suggest that the General Assembly believed that it was submitting, more than one proposed amendment to the Constitution.

Apparently, this contention is based upon the premise that an amendment which involves more than one subject, purpose or object is not one amendment but is more than one amendment.

A similar contention was made in State, ex rel. Burton, Pros. Atty., v. Greater Portsmouth Growth Corp. (1966), 7 Ohio St. 2d 34, 218 N. E. 2d 446, where this court stated that Section 1 of Article XVT “is directed to those instances where two or more different objects are sought to be accomplished in a single proposal.” We stated further that “the singleness of purpose or object sought to be accomplished by the amendment is the test of whether it complies with such section.”

With regard to this dicta, it is sufficient to state that our decision in the Burton case was based upon our conclusion that the amendment there involved related to a single purpose or object and that all else therein was incidental and reasonably necessary to effectuate the single purpose of the amendment.

It was, therefore, unnecessary for us to determine in that case whether Section 1 of Article XVI prohibited submission of a constitutional amendment as one amendment, if it involved more than one subject, purpose or object.

There is nothing in the Ohio Constitution that will support a reasonable conclusion that a single amendment to that Constitution proposed by the General Assembly can involve no more than one subject, purpose or object. Other proposals of the Constitutional Convention which proposed Section 1 of Article XVI clearly indicate that the words of that section should not be construed as limiting constitutional amendments proposed thereunder to one subject, purpose or object.

Thus, at the same time that the Constitutional Convention proposed Section 1 of Article XVI, it proposed Section 16 of Article II, which reads in part:

“No bill shall contain more than one subject * *

It is quite obvious therefore that, if those who submitted Section 1 of Article XVI had intended that each amendment to the Constitution proposed by the General Assembly be confined to one subject, object or purpose, they would have so provided as they did in Section 16 of Article II. They did not.^{5 6}

We conclude, therefore, that there is nothing in the Constitution of Ohio that requires an amendment thereof, proposed by the General Assembly pursuant to Section 1 of Article XVI, to be confined to one subject, purpose or object. Cf. Reutener v. Cleveland (1923), 107 Ohio St. 117, 141 N. E. 27.

There are other states, which have constitutional provisions providing that, when more than one amendment is submitted at one time, the amendments must be submitted so as to enable the electors to vote on each amendment separately. The general rule in those states is that an amendment may have more than one subject. It is sometimes held however that, although the proposed amendment may embrace several subjects, each subject must bear some reasonable relationship to a single general purpose or object.⁸

Thus, under those holdings, if Issue No. 1, in addition to what it now proposes, had also proposed to abolish the home-rule power of municipalities or to increase the length of the terms of members of the General Assembly, it would be regarded as proposing more than one amendment.

However, most states are liberal in interpreting what such a single general purpose or object may be.⁷

If we follow their decisions, Issue No. 1 would be a validly proposed constitutional amendment. The single general object of the proposed Ohio Bond Commission amendment is the creation of a bond commission to raise revenues by issuing bonds and to expend the moneys raised for certain stated public purposes.

If the proposed amendment provided only that a bond commission should be created to raise revenues for public purposes, no one would seriously contend that the proposal included more than one object and that therefore it represented more than one amendment. The fact, that the proposal limits the authority of the commission by specifying the purposes for which the revenues may be raised and used, does not turn the proposal into one for more than one amendment.

The final contention of those, opposing the May 2, 1967, special election with respect to Issue No. 1, is that the schedule prescribing the text of the proposed amendment does not properly describe the proposed amendment. It is even contended that “it is so incomprehensible and misleading as to constitute a fraud upon Ohio electors.”

As hereinbefore mentioned, Section 1 of Article XVI governs submission of a constitutional amendment proposed by the General Assembly. It reads:

“Either branch of the General Assembly may propose amendments to this Constitution; and, if the same shall be agreed to by three-fifths of the members elected to each House, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be submitted to the electors, for their approval or rejection, on a separate ballot without party designation of any kind, at either a special or a general election as the General Assembly may prescribe. Such proposed amendments shall be published once a week for five consecutive weeks preceding such election, in at least one newspaper in each county of the state, where a newspaper is published. If the majority of the electors voting on the same shall adopt such amendments the same shall become a part of the Constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment, separately.”

Nothing in the Constitution specifies how a proposed amendment to the Constitution, that is submitted pursuant to that section, shall be submitted, except that electors are to be given extensive notice thereof by publication and enabled to vote on that amendment separately.

Because such an amendment will have been approved by three-fifths of the members elected to each House of the General Assembly, it was apparently considered unnecessary to provide and distribute to each elector a printed copy of the proposed amendment, with arguments and explanations for and against it, as required in Section lg of Article II of the Constitution with respect to an amendment proposed by initiative petition.

In Amended Substitute House Joint Resolution No. 22, the General Assembly did state that “this proposed amendment * * * shall be placed on the official ballot in the manner prescribed by law in essentially the * * * form” therein specified.

It has been stipulated (Stip. 7) that the “Secretary of State # * # prepared the ballot title or statement to be placed on the ballot.” This was apparently done pursuant to the part of Section 3505.06, Revised Code, which reads:

“The questions and issues ballot need not contain the full text of the proposal to be voted upon. A condensed text that will properly describe the question, issue, or amendment shall be used as prepared and certified by the Secretary of State for state-wide questions or issues * * *. If such condensed text is used, the full text of the proposed question, issue, or amendment together with the percentage of affirmative votes necessary for passage as required by law shall be posted in each polling place in some spot that is easily accessible to the voters. ’ ’

This language was adopted after and represents a codification of our decision in Prosen v. Duffy (1949), 152 Ohio St. 139, 87 N. E. 2d 342. See also the prior cases of Reutener v. Cleveland, supra (107 Ohio St. 117), and Thrailkill v. Smith, Secy. of State (1922), 106 Ohio St. 1, 138 N. E. 532.

Since the “text * * * prepared * * * by the Secretary of State” is the same as that specified by the General Assembly in Amended Substitute House Joint Resolution No. 22, we are not confronted with the question as to whether the power conferred upon the General Assembly by Section 1 of Article XVI of the Constitution includes the power to prescribe how the ballot shall describe an amendment proposed thereunder.

This court has been previously presented with contentions that a condensed text did not “properly describe” a proposed constitutional amendment. What was said in considering those contentions should be helpful in guiding our consideration of that contention in the instant case.

In State, ex rel. Commissioners of Sinking Fund, v. Brown, Secy. of State (1957), 167 Ohio St. 71, 146 N. E. 2d 287, it is stated in the per curiam opinion:

“* * # the possibility of misunderstanding seems remote especially when it is remembered that the full text of the amendment was published in at least one newspaper in each county once a week for five consecutive weeks preceding the election, and that the full text was duly posted in every polling place. Of course a greater degree of accuracy of expression would have resulted if the ballot had contained the lengthy involved technical terms of the entire amendment, but this is the very difficulty sought to be avoided by the statute which expressly states that the ‘ballot need not contain the full text of the proposal’ and that a ‘condensed text’ may be substituted therefor. In criticizing the precis prepared by the respondent Secretary of State, it might be well to recall the wise observation of the noted historian, George Bancroft, in the preface to the last revision of his History of the United States, that ‘there is no end to the difficulty in choosing language which will awaken in the reader the very same thought that was in the mind of the writer. ’ ’ ’

In distinguishing the case of Beck v. Cincinnati (1955), 162 Ohio St. 473, 124 N. E. 2d 120, the court, in the Sinking Fund case, said:

“* * * The statement there disapproved was mere unauthorized speculation and coersive argumentation.”

There is no such speculation or argumentation in the condensed text involved in the instant case.

In Thrailkill v. Smith, Secy. of State, supra (106 Ohio St. 1), it is stated in the opinion, at page 9:

“ * * * the time afforded for marking ballots after the voter enters the booth does not permit a study of the printed matter on the ballot * * *. All study of the subject must necessarily end before the voter enters the booth * *

It was probably for the foregoing reason that the General Assembly, in 1954, amended Section 3505.06, Revised Code, by adding thereto the following paragraph:

“Each question and issue appearing on the questions and issues ballot may be consecutively numbered. The question or issue determined to appear at the top of the ballot may be designated on the face thereof by the arabic numeral ‘1’ and all questions and issues placed below on the ballot shall be consecutively numbered. Such numeral shall be placed below the heavy top horizontal line enclosing such question or issue and to the left of the brief title thereof.”

Pursuant to this statute, the Ohio Bond Commission amendment has been “designated” and will appear on the ballot as “Issue No. 1.” As stated in paragraph three of the syllabus of Thrailkill v. Smith, supra (106 Ohio St. 1), that was quoted with approval in State, ex rel. Commissioners of Sinking Fund. v. Brown, Secy. of State, supra (167 Ohio St. 71), at 74:

“It is one of the purposes of that statute to prevent each proposal on such ballot from becoming confused in the mind of the voter with other proposals concurrently submitted. Neither the letter nor the spirit of the Code provision requires that the title, or text, or a true copy of the proposed amendment, be printed on the ballot.”

In objecting to the “condensed text,” it is argued that it is too long. It does contain 880 words but the area required to reproduce it is less than one-third of the area required to reproduce what it describes. It is then argued that it omits too much, i. e., it is too short.

We do not believe that any useful purpose would be served by expanding this opinion with a detailed analysis of the proposed amendment and the 880-word description complained of. Although each of the members of this court might have used different, and more or less, words to describe the complicated and involved language used in the proposed amendment, we are of the opinion that the “condensed text” that will appear on the ballot will “properly describe” that amendment.

Furthermore, it is apparent that no elector who listens or reads will be unaware that Issue No. 1 is the Ohio Bond Commission amendment and that it is a highly controversial issue. Such elector should have an opportunity to read its complicated language in its entirety in a local newspaper once a week for five weeks before the election. He should also have an opportunity to read it where it is posted at his polling place. He can hardly escape hearing or reading the arguments for and against the amendment.

Hence, in our opinion, neither the length of the condensed text nor any omissions therefrom are likely to mislead those who vote at the May 2 election.⁸

As stated in the unanimous per curiam opinion in Moore v. Thompson (1954), 161 Ohio St. 339, 119 N. E. 2d 283:

‘ ‘ ‘ Strictly speaking, all provisions of the election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview, but irregularities, which were not caused by fraud and which have not interfered with a full and fair expression of the voters ’ choice, should not effect a disenfranchisement of the voters.’ ”

There is nothing to indicate that any of the statements in or omissions from the “condensed text,” that are being complained about, were caused by fraud; and there is nothing now to indicate that they will interfere with a full and fair expression of the voters’ choice. In such an instance, they should not prevent submission of Issue No. 1 to the voters.

The question to be decided by us is not whether the amend-meat proposed by Amended Substitute House Joint Resolution No. 22 should become a part of the Constitution. That was a question for each member of the 107th General Assembly to consider before he voted for submission of that proposed amendment, and it will be a question presented to each of us as an elector at the May 2 primary. As judges, the question that we have to decide is whether the Constitution requires that that amendment be submitted to the electors at a special election on May 2, 3967, as three-fifths of the members of each house of the General Asembly specified in Amended Substitute House Joint Resolution No. 22.

For the reasons hereinbefore stated, we conclude that the Constitution requires that Issue No. 1 be submitted at a special election on May 2.

Writ denied.

Herbert, Schneider and Brown, JJ., concur. Zimmerman, Matthias and O’Neill, JJ., dissent.

1 This contention, if sustained, would necessarily require the conclusion that there could also be no special election on that day for Issue No. 2, the so-called apportionment amendment. Although that question has not been specifically raised in these proceedings, it is raised in State, ex rel. Hayes, v. Brown, Secy, of State (case No. 40936), which was filed in this court on April 17, 1967.

2 We agree with the contention that House Bill No. 113 was not passed as an emergency measure and hence cannot be effective until after May 2, 1967. Hence, there is no statute providing for a special election on May 2, 1967, on any proposed constitutional amendment.

3 The words “special election” are not defined in the Constitution. In Section 3501.01 (D), Revised Code, it is stated:

“ ‘Special election’ means any election other than the elections required to be regularly held on the day of a general or primary election, provided that a special election may also be held on the day of a general or primary election.”

4 That sentence of the statute would have enabled submission of Issue No. 1 to a general election, if the General Assembly had said nothing in Amended Substitute House Joint Kesolution No. 22 about the time of submission.

5 Other states, which have constitutional provisions prohibiting the enactment of a statute embracing more than a single subject, have held that the statutes have no application to proposed constitutional amendments. See People, ex rel. Elder, Treas., v. Sours (1903), 31 Colo. 369, 401, 74 P. 167; State v. Lyons (1939), 40 Del. 77, 5 A. 2d 495; Cooney v. Foote (1914), 142 Ga. 647, 83 S. E. 537.

6 People, ex rel. Elder, Treas., v. Sours, supra (31 Colo. 369); Cooney v. Foote, supra (142 Ga. 647); Funk v. Fielder (Ky. 1951), 243 S. W. 2d 474; State, ex rel. Kemp, Atty. Genl., v. Baton Rouge (1949), 215 La. 315, 40 So. 2d 477; Fugina v. Donovan, Secy. of State (1960), 259 Minn. 35, 104 N. W. 2d 911; State, ex rel. Hudd, v. Timme, Secy. of State (1882), 54 Wis. 318, 11 N. W. 785.

7 A case quite similar to the instant one is State, ex rel. Morris, v. Mason, Secy. of State (1891), 43 La. Ann. 590, 9 So. 776, which held as one amendment an amendment authorizing lotteries and specifying that the revenues generated shall be for schools, levees, charities, pensions, sanitary purposes, and the general fund of the state. See also the following cases which upheld the involved amendments: State, ex rel. Hay, v. Alderson, Secy, of State (1914), 49 Mont. 387, 142 P. 210; and Gottstein v. Lister, Governer (1915), 88 Wash. 462, 153 P. 595 (amendment authorizing both initiative and referendum and withholding governor’s veto therefrom); State, ex rel. Hudd, v. Timme, Secy. of State, supra (54 Wis. 318) (amendment providing for election of assembly members and state Senators in districts, for their terms, for their salaries and for biennial sessions); People, ex rel. Elders, Treas., v. Sours, supra (74 P. 167) (amendment consolidated a city and a county government, specified its innumerable powers and rights, made general annexation laws applicable thereto, created a new judicial district and terms, etc., of its judges and officers); State, ex rel. Kemp. Atty. Genl., v. Baton Rouge (1949), 215 La. 315, 40 So. 2d 477 (amendment extended city boundaries, redistributed political power, created industrial, rural, and urban classifications, and granted new taxing powers to the city); Winget v. Holm (1932), 187 Minn. 78, 244 N. W. 331 (amendment governed taxation of national banks and authorized income tax); and Fuzera v. Donovan (1960), 259 Minn. 35, 10 N. W. 2d 911 (amendment authorized Legislature to extend term of session and authorized legislators to serve as notaries). Compare State, ex rel. Howie, Dist. Atty., v. Brantley, Commr. (1917), 113 Miss. 786, 74 So. 662 (strict construction), overruled in Power, Secy. of State, v. Robertson (1922), 130 Miss. 188, 93 So. 769; State, ex rel. McClurg, Atty. Genl., v. Powell (1900), 77 Miss. 543, 27 So. 927 (strict construction), criticized in State, ex rel. Collins, Atty. Genl., v. Jones (1913), 106 Miss. 522, 64 So. 241. Contra Kerby, Secy. of State, v. Luhrs (1934), 44 Ariz. 208, 36 P. 2d 549.

8 In Cooney v. Foote (1914), 142 Ga. 647, 83 S. E. 537, the Supreme Court of Georgia, in passing upon constitutional provisions similar to the Ohio ones involved herein, stated, at 654:

“* * * Article 13 of the Constitution did not prescribe the details relating to the manner of submission, but left them to the wisdom of the Legislature. It did provide for the publication of the proposed amendment, as a means of giving wide and extensive information of the exact nature of the proposed change or addition. It was never contemplated that the entire proposed amendment should be printed on the ballot. It was within legislative discretion to adopt some formula by which the voter would express his assent or dissent to the proposed amendment. The formula described by the Legislature was not intended for the purpose of informing the voter as to the full contents of the amendment. On the contrary, the formula was intended as the declaration by the voter of his approval or disapproval of the amendment which had been published in each congressional district. The amendment was submitted to the elector, and the formula prescribed was simply to elicit his expression as to whether or not the proposed amendment should become a part of the organic law. The formula written or printed on his ballot was but the legislative means of obtaining his expression upon the published proposal; and when he adopted the formula he indicated his vote upon the whole amendment which was submitted, and not a mere part.”