State ex rel. Ohio AFL-CIO v. Voinovich

631 N.E.2d 582, 69 Ohio St. 3d 225

Opinions

Wright, J.

These three cases challenge the constitutionality of Am.Sub.H.B. No. 107 of the 120th Ohio General Assembly. The cases present the following constitutional issues: (1) whether Am.Sub.H.B. No. 107 violates the one-subject rule of Section 15(D), Article II of the Ohio Constitution; (2) whether the bill violates the three-consideration provision of Section 15(C), Article II of the Ohio Constitution; (3) whether the bill denies the citizens of this state their right to a referendum under Section 1, Article II of the Ohio Constitution; and (4) whether abolishing the old Industrial Commission and creating a new one deprives the former commission members of their positions without due process of law and violates the constitutional doctrine of separation of powers. Case No. 93-2059 presents the further question of whether the Governor violated former R.C. 4121.02(E) by failing to grant relator Geltzer an annual salary increase of five percent.

I

In their first proposition of law relators in case No. 93-2057 argue that Am.Sub.H.B. No. 107 contains more than one subject and therefore violates the one-subject rule of Section 15(D), Article II of the Ohio Constitution. Relators argue that the bill contains seven different subjects: appropriations for the Bureau of Workers’ Compensation, appropriations for the Industrial Commission, structural changes to the Bureau of Workers’ Compensation, structural changes to the Industrial Commission, changes to the substantive provisions of the workers’ compensation law, the creation of a new employment intentional tort, and the creation of a child labor exemption for the entertainment industry.

We agree that the provisions creating a new employment intentional tort and the provisions related to the child labor exemption violate the one-subject rule. The provisions related to the remaining five topics, however, are all directed at the same subject, workers’ compensation, and therefore do not violate the one-subject rule.

Section 15(D), Article II of the Ohio Constitution provides:

“No bill shall contain more than one subject, which shall be clearly expressed in its title. * * * ”

This court has held that Section 15(D), Article II is directory rather than mandatory. State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 11 OBR 436, 464 N.E.2d 153. “There is no question that by holding that the one-subject rule is directory and not mandatory, judicial interference with legislative action is reduced.” Id. at 144,11 OBR at 439, 464 N.E.2d at 156. However, although we are most reluctant to interfere in the legislative process, we will not “abdicate [our] duty to enforce the Ohio Constitution.” Id. at 144, 11 OBR at 439, 464 N.E.2d at 157. Accordingly, we will hold enactments invalid under Section 15(D), Article II whenever there is a “manifestly gross and fraudulent violation” of this provision of the Ohio Constitution. Id. at syllabus. But “[t]he mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics.” (Emphasis added.) Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 6, 19 OBR 1, 5, 482 N.E.2d 575, 580.

The bill at issue in this case funds the Bureau of Workers’ Compensation and the Industrial Commission, contains provisions that structurally change those administrative bodies, and amends the procedural and substantive law underlying the compensation of injured workers. We cannot conclude these provisions are so unrelated that they constitute a “manifestly gross and fraudulent violation” of the one-subject rule of the Ohio Constitution. Although the provisions embrace more than a singular topic, they do have a common purpose: to amend and reform the laws governing the compensation of injured workers and to fund the two agencies that are charged with administering those laws. And they all have a clear common relationship, namely workers’ compensation.

Relators nevertheless assert that the appropriation aspects of Am.Sub.H.B. No. 107 bear no relation to the rest of the bill. We disagree. In Dix, supra, the relator contended that the addition of an appropriation provision to a bill which abolished the Ohio Development Financing Commission and which transferred the duties to the Director of Development violated the one-subject rule. We held otherwise, stating that “the one-subject provision is not directed at plurality but at disunity in subject matter * * (Emphasis added.) Id., 11 Ohio St.3d at 146, 11 OBR at 440-441, 464 N.E.2d at 158. The appropriation is “simply the means by which the act is carried out, and the inclusion of such an appropriation does not destroy the singleness of the subject * * Id. at 146,11 OBR at 441, 464 N.E.2d at 158. As stated by Professor Ruud, “[t]here seems to be no serious contention that an appropriation is in itself a second subject; therefore, an act may, for example, establish an agency, set out the regulatory program, and make an appropriation for the agency without violating the one-subject rule.” Ruud, “No Law Shall Embrace More Than One Subject” (1958), 42 Minn.L.Rev. 389, 441.

We see no reason to depart from our holding in Dix and declare that the appropriation provisions of Am.Sub.H.B. No. 107 destroy the unity of the bill. The inclusion in the bill of such provisions simply allows the other provisions of the bill to be implemented.

We have previously stated, however, that intentional torts are completely unrelated to workers’ compensation and the employment relationship. In Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, we held that “[w]hile [a] cause of action [alleging a workplace intentional tort] contemplates redress of tortious conduct that occurs during the course of employment, an intentional tort alleged in this context necessarily occurs outside the employment relationship.” Id. at paragraph one of the syllabus. Under our decision in Brady, the intentional tort provision under newly enacted R.C. 2745.01 is not and cannot be related to the common purpose of the bill, and we therefore hold that such provision violates Section 15(D), Article II of the Ohio Constitution.

Likewise, we determine that the provisions creating an exemption for the employment of minors violate Section 15(D), Article II of the Ohio Constitution. The provisions amend R.C. 4109.06 by adding the language that R.C. Chapter 4109 does not apply to a minor participating as an actor in a movie or in radio or television productions. In a broad sense this exemption addresses the area of employment, an area also addressed by the workers’ compensation laws. However, the purpose, in part, behind Am.Sub.H.B. No. 107 was not to generally amend laws that relate to employment but to specifically amend the workers’ compensation laws. The child labor exemption does not in any way touch upon the laws related to workers’ compensation. We therefore find that the inclusion of the child labor exemption in Am.Sub.H.B. No. 107 was an actionable violation of the one-subject rule of the Ohio Constitution.

Having found that the intentional tort and child labor exemption provisions of Am.Sub.H.B. No. 107 violate Section 15(D), Article II of the Ohio Constitution, we sever those portions from the bill. State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 149, 580 N.E.2d 767, 770. The remaining provisions of the bill do not violate Section 15(D), Article II and pursuant to our decision in Hinkle we save those provisions. We therefore grant relators’ request for a writ of mandamus on the issue of whether Am.Sub.H.B. No. 107 violates the one-subject rule of the Ohio Constitution only as the request relates to the intentional tort and child labor exemption provisions of the bill. We deny all other requests for a writ of mandamus and prohibition on this issue.

II

Relators in all three cases argue that Am.Sub.H.B. No. 107 was enacted in violation of the three-consideration provision of Section 15(C), Article II of the Ohio Constitution. That section states in relevant part:

“Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house. No bill may be passed until the bill has been reproduced and distributed to members of the house in which it is pending and every amendment been made available upon a member’s request.”

Relators’ principal argument is that the Senate Commerce and Labor Committee “vitally altered” the bill by incorporating the provisions of H.B. No. 106 (biennial appropriations for the Industrial Commission) and S.B. No. 152 (a bill substantially restructuring the workers’ compensation system) into Am.Sub.H.B. No. 107. They contend that the substitute bill should have received three more considerations from each chamber because it was wholly changed.

Relators in case No. 93-2060 further maintain that the conference committee which met to resolve the differences between each chamber’s version of Am.Sub. H.B. No. 107 again “vitally altered” the bill, which thereafter received only one consideration in each chamber.

Respondents counter these arguments by indicating that the legislative journals reflect that Am.Sub.H.B. No. 107 did indeed receive the mandatory three considerations from each legislative body. Moreover, they assert that neither the Senate Commerce and Labor Committee nor the conference committee “vitally altered” the bill and that at all times there was a common relationship and purpose between the amendments and the original bill.

This court has interpreted the Ohio Constitution’s three-consideration rule on several previous occasions. In Miller v. State (1854), 3 Ohio St. 475, 484, the court held that as long as the legislative journals reveal a bill was passed, and there is nothing in the journals to show that the bill was not read as the Constitution requires, then a presumption of compliance arises and the presumption cannot be rebutted with proof. Hence, the court in subsequent cases viewed the three-consideration language to be directory and not mandatory. Compliance with the rule was a matter of enforcement for the General Assembly and not for the judiciary.

In 1973 the Ohio Constitution was amended and the language “and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house” was added to the original three-consideration provision. “Thus, by constitutional mandate, there now exists an inherently reliable immediate source by which the legislature’s compliance may be readily ascertained without any undue judicial interference.” Hoover, supra, 19 Ohio St.3d at 4, 19 OBR at 3, 482 N.E.2d at 578.

As a result of the 1973 amendment, the Hoover court found the holding in Miller no longer controlling. Rather, in Hoover, the court stated that “where it can be proven that the bill in question was not considered the required three times, the consequent enactment is void and without legal effect.” Id. at 3, 19 OBR at 2-3, 482 N.E.2d at 578. The court went on to hold that “[w]here the Ohio Constitution mandates that a recordation be made in the legislative journals reflecting that a particular step in the enactment process has been taken, the absence of entries to that effect renders an enactment invalid.” Id. at syllabus.

Relators essentially ask us to extend the holding in Hoover to the cases before us, analogizing the facts of that case to those of the cases under consideration here. We decline to extend our holding because Hoover is factually distinguishable from the present cases.

In Hoover, the court considered a bill that was introduced in the Senate and originally pertained to criminal non-support. It received some minor amendments, was read three times in the Senate, passed there, and was then sent to the House of Representatives. In the House Judiciary Committee the amended bill was completely stripped of its existing language and in its place was substituted a bill “completely different in content” from the one passed by the Senate. (Emphasis sic.) Id., 19 Ohio St.3d at 5,19 OBR at 5,482 N.E.2d at 579. Instead of the subject of criminal non-support the bill now pertained to “the financing, acquisition and construction of hospital and health care facilities for the use of non-profit entities.” Id. The bill was subsequently enacted into law.

As stated above, the court modified the holding in Miller and thereby provided the plaintiff in Hoover with a cause of action and allowed him to offer evidence that the legislative journal did not reflect “the requisite three considerations in each house * * * in the form in which it was eventually enacted.” Id., 19 Ohio St.3d at 5, 19 OBR at 4, 482 N.E.2d at 579. Thus, as a result of Hoover the three-consideration language of Section 15(C), Article II is no longer directory but is instead mandatory.

We did not, however, abandon Miller in its entirety. The court in Hoover went on to adopt Miller’s reasoning that “amendments which do not vitally alter the substance of a bill do not trigger a requirement for three considerations anew of such amended bill.” (Emphasis added.) Hoover, supra, 19 Ohio St.3d at 5, 19 OBR at 4, 482 N.E.2d at 579. See, also, ComTech Systems, Inc. v. Limbach (1991), 59 Ohio St.3d 96, 570 N.E.2d 1089.

Thus, this court, in considering the validity of a legislative enactment, no longer shows complete deference to the legislative journals with respect to the issue of compliance with the three-consideration requirement. The facts in Hoover demonstrate a bill that was in fact “wholly changed.” We feel that a more demanding constitutional test is one that examines whether a bill was “vitally altered,” departing entirely from a consistent theme. We therefore hold that a legislative Act is valid if the requisite entries are made in the legislative journals and there is no indication that the subject matter of the original bill was “vitally altered ” such that there is no longer a common purpose or relationship between the original bill and the bill as amended.

On their face, the journals indicate three readings of Am.Sub.H.B. No. 107 in both chambers, albeit the final version was reread just once in each. Am.Sub. H.B. No. 107 was in fact substantially amended at every step in the proceedings. In the House, the committee reviewing the bill added several substantive amendments to original appropriations provisions, and three more amendments were made from the floor. In the Senate, the Senate Commerce and Labor Committee incorporated the provisions from a related appropriations bill and a bill that significantly revised the underlying substantive law sections.² Six additional amendments were approved on the Senate floor. Then, Am.Sub.H.B. No. 107 was substantially amended once again in the conference committee to which it was referred before finally being passed by both houses.

The difference between a valid bill that is heavily amended, however, and an invalid one that is “vitally altered,” as relators would have us interpret the phrase, is one of degree. Section 15(A), Article II of the Ohio Constitution reserves to each house the right to freely alter, amend or reject bills introduced by either.³ This court would be setting dangerous and impracticable precedent if it undertook a duty to police any such difference of degree.

Instead, we must look to the underlying purpose of the three-consideration provision. As articulated by Justice Douglas in his concurring opinion in Hoover, “the purpose of the ‘three reading’ rule is to prevent hasty action and to lessen the danger of ill-advised amendment at the last moment. The rule provides time for more publicity and greater discussion and affords each legislator an opportunity to study the proposed legislation, communicate with his or her constituents, note the comments of the press and become sensitive to public opinion.” Id., 19 Ohio St.3d at 8, 19 OBR at 7, 482 N.E.2d at 582 (Douglas, J., concurring).

Unlike the situation in Hoover where the entire contents of the original bill were removed and replaced by a totally unrelated subject, we are dealing here with a bill that has been heavily amended and yet retains its common purpose to modify the workers’ compensation laws. Furthermore, both houses deliberated upon Am.Sub.H.B. No. 107 and its amendments for several months. Hearings were held and the issues were openly debated. The Governor stimulated the debate by announcing in the press that he would veto any appropriations bill that did not also substantially reform the underlying workers’ compensation system. It would be difficult to characterize this activity as “hasty action” that precipitated “ill-advised amendment at the last moment.”

Based on the foregoing, we decline to extend the Hoover analysis to the bill before us and declare the bill unconstitutional. To dp otherwise would place this court in the position of directly policing every detail of the legislative amendment process when bills are passed containing a consistent theme.

Accordingly, we deny relators’ requests for a writ of mandamus on the issue of whether Am.Sub.H.B. No. 107 violates the three-consideration provision of Section 15(C), Article II of the Ohio Constitution.

Ill

Relators in case No. 93-2057 argue in their second proposition of law that the enactment of Am.Sub.H.B. No. 107 unconstitutionally deprived the citizens of Ohio of their right of referendum. We agree, and in so doing overrule our decision in State ex rel. Riffe v. Brown (1977), 51 Ohio St.2d 149, 5 O.O.3d 125, 365 N.E.2d 876.

Section 1, Article II of the Ohio Constitution reserves to the people of this state the power of referendum, a power which serves as a check on the General Assembly by permitting laws or parts of laws passed by that body to be submitted to the voters for approval or rejection. Section 1, Article II provides in part:

“[T]he people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the general assembly, except as hereinafter provided * *

Section lc, Article II of the Ohio Constitution further, describes the power of referendum:

“[T]he signatures of six per centum of the electors shall be required upon a petition to order the submission to the electors of the state for their approval or rejection, of any law, section of any law or any item in any law appropriating money passed by the general assembly. No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided. When a petition, signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to sixty days after the filing of such petition, and no such law, section or item shall go into effect until and unless approved by a majority of those voting upon the same. If, however, a referendum petition is filed against any such section or item, the remainder of the law shall not thereby be prevented or delayed from going into effect.”

The power of referendum, however, is not absolute. Section Id, Article II of the Ohio Constitution limits the power of referendum by providing that certain laws are not subject to referendum:

“Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. * * * The laws mentioned in this section shall not be subject to the referendum.” (Emphasis added.)

The court in Rijfe addressed the right of referendum in a case similar to the cases before us today. In Rijfe, Sections 1 and 2 of the bill altered the substantive law related to voting and election procedures; and Section 5 provided an appropriation for the current expenses of the Secretary of State. After the bill was filed in the office of the Secretary of State, the Secretary of State, in his acknowledgement of the filing, indicated that Section 5 — the appropriation provision — was effective on the date the Governor had signed the bill. The Secretary of State also indicated, however, that Sections 1 through 4 would not become effective until ninety days after the date on which the bill had been filed in the Secretary of State’s office, thereby giving the citizens of Ohio an opportunity to submit a petition for a referendum on those sections.

Relators in Rijfe filed a complaint against respondent, the Secretary of State, seeking an order from this court granting writs of mandamus and prohibition directing the Secretary of State to give immediate effect to the entire bill.

The court granted relators’ request for a writ of mandamus, holding that the entire bill took immediate effect because one part of the bill contained an appropriation for the current expenses of the state government, a provision that pursuant to Section Id, Article II of the Ohio Constitution takes effect immediately and is not subject to a referendum. The court reasoned that because part of the bill contained such a provision, the remaining parts of the bill, which otherwise would be subject to a referendum, “must necessarily share [the] constitutionally imposed disability.” Riffe, supra, 51 Ohio St.2d at 154, 5 O.O.3d at 128, 365 N.E.2d at 879-880.

Chief Justice O’Neill and Justices Herbert and Paul W. Brown dissented. In his dissent, Chief Justice O’Neill stated that “[t]he language of Section lc [Article II] providing that ‘such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection * ’ establishes unequivocally that an Act need not necessarily have a single effective date.” (Emphasis added.) Id. at 163, 5 O.O.3d at 133, 365 N.E.2d at 884. He further stated that “[i]n all previous cases involving Section Id exceptions this court has recognized that the right of referendum attaches to each section of the law not specifically falling within Section Id.” (Emphasis added.) Id. at 164, 5 0.0.3d at 133, 365 N.E.2d at 884-885.

We find the reasoning of Chief Justice O’Neill compelling and agree with him that the decision in Riffle “emasculate[s] the constitutional right of electors of Ohio to a referendum.” Id. at 162, 5 0.0.3d at 132, 365 N.E.2d at 883. We therefore overrule our decision in Riffle and adopt the holding proposed by Chief Justice O’Neill, which states:

“Any section of a law which changes the permanent law of the state is subject to referendum under the powers reserved to the people by Section 1 of Article II, even though the law also contains a section providing for an appropriation for the current expenses of the state government and state institutions which under Section Id, Article II, becomes immediately effective.” Id., 51 Ohio St.2d at 167, 5 O.O.3d at 135, 365 N.E.2d at 886.

We are mindful that in the case before us today the General Assembly did provide for a ninety-day delay before the nonappropriation provisions of Am.Sub. H.B. No. 107 would take effect. Our decision in Riffle, however, appears to have foreclosed any meaningftfi opportunity for the citizens of this state to circulate a petition for a referendum on Am.Sub.H.B. No. 107. We therefore stay the nonappropriation provisions of Am.Sub.H.B. No. 107 for a period of ninety days from the date of this decision. During this ninety-day period, relators may undertake to submit to the Secretary of State a petition for a referendum on the provisions of Am.Sub.H.B. No. 107 that change the permanent law of the state. Of course, no referendum is available for the provisions appropriating money for the current expenses of the state government. Thus, we grant relators’ request for a writ of mandamus on the issue of whether Am.Sub.H.B. No. 107 violates the right of referendum under Section 1, Article II of the Ohio Constitution.

IV

Relators in case No. 93-2057 argue that by abolishing the existing Industrial Commission and establishing a new commission, the legislature (1) engaged in an impermissible subterfuge, and (2) violated the doctrine of separation of powers by interfering with the authority of a quasi-judicial body. Relator in case No. 93-2059 adds that the legislation deprived the members of the old commission of their employment in violation of their right to due process of law under the federal and state Constitutions. We disagree with each of these assertions, and therefore deny relators’ requests for writs of mandamus, prohibition and quo warranto with respect to these issues.

Relators argue that the enactment of Am.Sub.H.B. No. 107 was a subterfuge because it was done “solely for the purpose of replacing the current members [of the Industrial Commission] with new ones.” To support their contention, relators cite a court of appeals decision from this state which defined “subterfuge” in the civil service context as follows:

“The test of subterfuge in the abolishment of a position is: if another is employed to perform substantially identical service, either under the same or a different title, the purported abolishment is a subterfuge; if another is not so employed, the position has been legally abolished and it is not a subterfuge.” State ex rel. Dahmen v. Youngstown (1973), 40 Ohio App.2d 166, 69 O.O.2d 171, 318 N.E.2d 433, paragraph four of the headnotes.

Relators argue that the General Assembly did not abolish the Industrial Commission but instead simply removed the members from the commission and replaced them with new members, who were to perform the same tasks.

We do not agree that the General Assembly engaged in a subterfuge under either the test proposed by relators or any other test. The enactment of Am.Sub.H.B. No. 107 does not simply replace the former members of the Industrial Commission with new members but instead creates a new commission that is substantially different from the old.

Am.Sub.H.B. No. 107 reduces the number of members of the Industrial Commission from five to three and changes the procedure by which the members are selected. Before the enactment of Am.Sub.H.B. No. 107 the Governor had broad authority under R.C. 4121.02 to appoint members to the Industrial Commission without any restriction imposed by an outside body. Am.Sub.H.B. No. 107 changes the selection process by limiting the Governor’s powers of appointment. Am.Sub.H.B. No. 107 enacts a new statute, R.C. 4121.04, which creates a ten-member Industrial Commission Nominating Committee composed of representatives of employers, labor and the public. The nominating committee, eight of whose members are appointed by the Governor from lists submitted by the Ohio Federation of Labor and representatives of Ohio industry, makes recommendations to the Governor for the appointment of members to the commission. Under newly enacted R.C. 4121.02(D), the Governor must then appoint commission members from those individuals recommended by the nominating committee.

Am.Sub.H.B. No. 107 also changes the powers and duties of the Industrial Commission. The bill amends R.C. 4121.121 by transferring from the Industrial Commission to the Bureau of Workers’ Compensation the authority to process applications for final settlements of claims or benefits in cases that involve state fund employees and employers. The bill amends R.C. 4121.35 by transferring from the commission to the bureau the authority to establish specific safety codes. Under amended R.C. 4123.417, the commission no longer has authority over the Disabled Workers’ Relief Fund. These are but three of the changes made. Relators in case No. 93-2060 summarize the extent of the changes to the commission by stating that “the Conference Bill sharply limits the responsibilities of the Industrial Commission of Ohio * *

Based on the above, it is clear that the General Assembly’s purpose in enacting Am.Sub.H.B. No. 107 was to do more than simply replace the members of the Industrial Commission with new members. Accordingly, relators’ argument that the enactment of Am.Sub.H.B. No. 107 was a subterfuge is without merit.

Relators further maintain that the enactment of Am.Sub.H.B. No. 107 violates the constitutional doctrine of separation of powers, citing in support of their contention Humphrey’s Executor v. United States (1935), 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. Relators argue that “[permitting the legislature to terminate and recreate a commission such as the Industrial Commission gives the legislature a ‘coercive influence’ which ‘threatens the independence of a commission, * * * ’ ” quoting Humphrey’s Executor, supra, at 630, 55 S.Ct. at 875, 79 L.Ed. at 1620. Relators conclude that allowing the legislature to have such power interferes with the commission’s ability to make fair and impartial decisions.

We find relators’ reliance on Humphrey’s Executor misplaced. In Humphrey’s Executor, the Supreme Court upheld the authority of Congress to create a quasi-judicial agency, the Federal Trade Commission, and to limit the removal of its members by the President for cause. Humphrey’s Executor establishes the authority of the Congress to limit the power of the executive branch to remove members from a quasi-judicial agency created by Congress. The case does not stand for the broad proposition that an agency, once created, must be free from any interference in its decisionmaking (assuming, of course, that the mere act of restructuring a commission would somehow interfere with its decisionmaking ability). Nor does the case limit the power of Congress — and, by analogy, the General Assembly — to restructure an agency it has created.

Moreover, Section 35, Article II of the Ohio Constitution expressly grants to the General Assembly the power to pass, inter alia, laws establishing a state fund for workers’ compensation cases, laws related to the administration of those funds, and laws establishing a board to oversee the workers’ compensation system. And Section 27, Article II of the Ohio Constitution grants authority to the General Assembly to establish the manner in which members of state offices are appointed. Given these grants of authority, we fail to see how the enactment of Am.Sub.H.B. No. 107 amounts to either an unconstitutional “coercive influence” by the General Assembly over the Industrial Commission or an unconstitutional encroachment on the authority of the executive branch.⁴

Finally, relator in case No. 93-2059 argues that the commission members have a property interest in their employment and that the General Assembly cannot take that interest from them except by due process of law. Relator contends that, as public officials, the commission members have a property interest in their position similar to the property interest held by classified civil servants in their employment.

We hold that relator’s due process argument is totally without merit on the authority of our decisions in State ex rel. Herbert v. Ferguson (1944), 142 Ohio St. 496, 27 O.O. 415, 52 N.E.2d 980, and State ex rel. Trago v. Evans (1957), 166 Ohio St. 269, 2 O.O.2d 109, 141 N.E.2d 665. In Herbert, we defined “public office” as “a charge or trust conferred by public authority for a public purpose, with independent and continuing duties, involving in their performance the exercise of some portion of the sovereign power.” Id., 142 Ohio St. at 501, 27 O.O. at 417, 52 N.E.2d at 983. In Trago, we held that “[pjublic offices are held neither by grant nor contract, and no person has a vested interest or private right of property in them.” Id. at paragraph one of the syllabus.

The Industrial Commission exercises sovereign state power by virtue of its authority to exercise the quasi-judicial function of adjudicating claims. Under former R.C. 4121.03(F), the commission “is responsible for the adjudication of claims * * Under newly enacted R.C. 4123.511(E), the commission has authority to hear appeals of cases. Because they exercise sovereign power in this regard, the members of the commission hold a public office, an office which pursuant to our decision in Trago, supra, confers upon them no property right. As a result, we find that the 1993 enactment of Am.Sub.H.B. No. 107 does not deprive any member of the former Industrial Commission of his right to due process of law.

We deny all requests for writs of mandamus and prohibition on the issues addressed in Part IV of this opinion.

V

In case No. 93-2059 relator asserts that the Governor violated his duty under former R.C. 4121.02(E) by failing to grant relator an annual salary increase of five percent. Appointed as the public member of the Industrial Commission, relator has received no increase in salary since his appointment was effective on July 1, 1991. He seeks a writ of mandamus to compel payment of two five-percent salary increases.

Former R.C. 4121.02(E) directed the Governor to grant each member of the commission “an annual salary increase based upon the average salary increases of other department directors for that year, not to exceed five per cent per year.” 143 Ohio Laws, Part II, 3265. Because the average of all salary increases given to directors in 1993 exceeded five percent, relator asserts he is entitled to the maximum five percent permitted under former R.C. 4121.02(E).

While respondents concede relator’s right to a salary increase, they argue that the use of mandamus to obtain this relief is improper. Respondents assert that where relator could bring an action at law, such as an action for money damages, mandamus cannot be employed as a substitute, citing Maloney v. Sacks (1962), 173 Ohio St. 237, 19 O.O.2d 51, 181 N.E.2d 268.

The general rule stated in Maloney, however, does not apply to public employees. Rather, in State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraph three of the syllabus, this court held that “[t]he ministerial act of making payment of money due a public employee may be compelled by mandamus where the public employee has a clear legal right to payment of the compensation and the respondent public officer has a clear legal duty to perform the ministerial task of making such payment.”

Thus we find in this case that mandamus is an appropriate remedy to compel payment of the salary increase to which relator is entitled.

We therefore grant relator’s request for a writ of mandamus on the issue of whether he is entitled to receive a salary increase.

VI

All other requests for writs of mandamus, prohibition and quo warranto that are not specifically granted in this opinion are denied.

Judgment accordingly.

Douglas and Resnick, JJ., concur separately. Pfeifer, J., concurs separately. Moyer, C.J., concurs in part and dissents in part. A.W. Sweeney, J., concurs in part and dissents in part. F.E. Sweeney, J., dissents in part and concurs in part.

2 . We give no effect to relators’ suggestion that the fact that the bill was sent to the Senate Commerce and Labor Committee instead of the Senate Finance Committee indicates bad faith on the Senate’s part.

3 . Section 15(A), Article II states in part: “Bills may originate in either house, but may be altered, amended, or rejected in the other.”

4 . See, also, Thornton v. Dufy (1918), 99 Ohio St. 120, 124 N.E. 54, in which we held that “[t]he enactment of the Workmen’s Compensation Law * * * did not exhaust the authority conferred upon the general assembly of Ohio by Section 35 of Article II of the Constitution. On the contrary, it has the power to amend or repeal all or any portion thereof at any time it deems proper.” (Emphasis added.) Id. at paragraph one of the syllabus.