State ex rel. Riffe v. Brown

365 N.E.2d 876, 51 Ohio St. 2d 149, 5 Ohio Op. 3d 125, 1977 Ohio LEXIS 449

• Court: Ohio Supreme Court
• Decided: July 8, 1977
• Docket: No. 77-666
• Status: Published

Opinions

Per Curiam.

The issue presented, is-whether Sections-1-, 2, 3 and 4 of Amended Substitute Senate Bill No. 125, pertaining to voting procedures, take immediate.effect on are effective on August 30, 1977, 90 days after the filing of the Act with the Secretary of State.

Section 1 of Article II of the Ohio Constitution expressly states that “the 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 [the people] 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 * * (Emphasis added.)

Sections lc and Id of Article II of the Ohio Constitution, adopted simultaneously by the electorate in 1912, govern the effective dates of legislative enactments in this state.

Section lc reads:

“The second aforestated power reserved by the people is designated the referendum, and the 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, sections 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 matter 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 ho 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.”

Section Id provides:

“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. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the general assembly, and the reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum.”

Respondent agrees with relators that pursuant to the plain wording of Article II, Section Id, a law providing for an appropriation for current expenses [of the state government] takes effect immediately. Respondent agrees further that Am. Sub. S. B. No. 125, in Section 5 thereof, provides for an appropriation for current expenses of the state government.

Respondent contends that since Am. Sub. S. B. No. 125 (hereinafter called the “law”) contains such an appropriation in Section 5 thereof, that section took immediate effect, but that all other items or sections are subject to referendum.

The inconsistency in positions posited by the parties herein can most reasonably be attributed to a fundamental misapprehension of terminology contained in those constitutional provisions. For example, respondent’s third proposition of law begins thusly:

“An Act which contains a law * * and elsewhere in respondent’s brief, the terms “law” and “Act” are used interchangeably. The proper relationship of those words is best expressed in the following portion of another referendum case, Pfeifer v. Graves (1913), 88 Ohio St. 473, 480:

“A proposed law is first initiated by a petition filed with the secretary of state, who transmits it to the general assembly (if the petition be properly signed and verified), where it is introduced as a bill; if both bodies adopt and pass it as proposed it becomes an act, and when it is enrolled and filed by the governor with the secretary of state it becomes a law * * *.” (Emphasis sic.)

Much of the confusion stems from the following imprecise judicial musings in State, ex rel. Donahey, v. Roose (1914), 90 Ohio St. 345, 349, decided shortly after the enactment of the subject constitutional provisions:

“While perhaps some of the sections of this act may have been subject to the referendum provisions of Section lc of Article II of the Constitution, yet Section Id of Article II expressly exempts laws providing for tax levies from the operation of the preceding provision of the Constitution. Therefore section 1 of this act, providing for a tax levy of one-half of one mill on taxable property within the state, went into immediate operation when approved and signed by the governor.

“The contention of counsel that an act containing some sections subject to the referendum will take effect only as a whole after the expiration of ninety days from the date it is filed in the office of the secretary of state, is not sustained by the provisions of Section lc of Article II of the Constitution. That section of the constitution expressly authorizes a referendum upon any section of a law or any item of a law appropriating money. It follows that such sections of a law as are not subject to the referendum will go into immediate effect notwithstanding other sections or other items may be subject to the delay incident to a referendum or the right to petition therefor.”

The opinion of the court then goes on to immediately state that “the question is no longer of any importance” because of the extremely hypothetical nature of the discussion.

Whatever precedential value the Boose case may have, it must be balanced against its operative portions being largely obiter dictum. Eespondent, however, relies upon paragraph two of the syllabus in Boose which reads' as follows:

“Section lc of Article II of the Constitution of Ohio expressly provides for a referendum not only upon any law but any section of a law. All sections of a law not subject to the referendum provisions of this section of the constitution go into immediate effect when approved and signed by the governor.”

In our view, a law which is “not subject to the referendum provisions” of Section lc is a law of the nature set forth in Section Id. One such law so mentioned is a law providing for “* * * appropriations for the current expenses of the state government * * Accordingly, pursuant to the foregoing paragraph of the Boose syllabus, “ [a]ll [meaning, each and every] sections of a law not subject to-the referendum provisions of # * * section [lc] of the constitution go into immediate effect when approved and sign-' ed by the governor.”

As to other laws, which are not laws mentioned in Section Id, but which may similarly be laws “appropriating money,” such laws do not go into effect for 90 days and the referendum process of Section lc is available. The sections and items of any law thus subject to referendum are likewise, but severally or collectively, subject to referendum according to the express provisions of Section lc. Inasmuch as a law mentioned in Section Id, by the terms of that constitutional provision, is clearly ineligible for referendum, the sections, items or other parts of such law must necessarily share that constitutionally imposed disability.¹

The clearest illustration to be found in the annals of this court as to the point just made, is the case of State, ex rel. Davies Mfg. Co., v. Donahey (1916), 94 Ohio St. 382. In that case a manufacturer of auto tags sought payment for tags furnished to the state on a contract executed July 1, 1915. The auditor refused because the relator had failed to comply with a competitive bidding requirement which had been enacted along with an appropriation for the current expenses of the state government, as part of an appropriation Act, passed May 27, 1915.

The relator therein argued that the competitive bidding item of the law was not in effect at the time of the execution of his contract because it “was an ‘item in such law appropriating money,’ which subjected it [the item] to a referendum under the referendum provisions of the Ohio constitution; [and] that it [the item] * * * [therefore] remained inchoate until the expiration of 90 days after the same was filed in the office of the secretary of state * * State, ex rel. Davies Mfg. Co., v. Donahey, supra, at page 385.

. The court held that the appropriation Act, including the required competitive bidding provision,² went into immediate effect and was not subject to a referendum under Section lc, Article II of the Ohio Constitution.

Chief Justice Nichols, in State v. Lathrop (1915), 93 Ohio St. 79, 87, observed that “[t]here is a class of laws not subject to the ninety-day period. Laws providing for state levies, appropriations for current expenses of the state government and state institutions and emergency laws, as defined in Section Id of Article II, go into immediate effect by the express language of the Constitution.” The court noted further that Section Id is a direct limitation on Section lc.³

The court held further, at page 88, that Section Id emergency laws “go into immediate effect when approved by the governor, and that all other acts go into effect ninety days after the same have been filed with the secretary of state, regardless of the date of approval by the governor.”

The foregoing statement of more than 60 years vintage makes clear the role of the Secretary of State in connection with laws mentioned in Section Id, Article H: he has no function in approving or otherwise authorizing the effectiveness of such laws. The brief filed on his behalf has not set forth any authority for the Secretary of State to set or establish the effective date of a law.⁴ Rather, counsel for respondent chooses to rely on an alleged “longstanding practice of the respondent # * * to accord separate effective dates to an Act.” Relators, citing State, ex rel. Delaney, v. Holmes (1915), 5 Ohio App. 1, aptly point out that “ [acquiescence in the action of a person or official board cannot be charged where the person or board taking such action was without power or jurisdiction to act.”

In conclusion, by virtue of the decision reached herein, respondent is under a clear legal duty to carry out the provisions of the law designated Am. Sub. S. B. No. 125. Because relators are without a plain and adequate remedy in the ordinary course of the law, a writ of mandamus is therefore allowed (State, ex rel. Pressley, v. Indus. Comm. [1967], 11 Ohio St. 2d 141), but a writ of prohibition, being rendered thereby unnecessary, is hereby denied as moot.

Writ of mandamus allowed.

Writ of prohibition denied.

Celebrezze, W. Brown, Sweeney and Locher, JJ., concur. O’Neill, C. J., Herbert and P. Brown, JJ., dissent.

1 It is outside the competence of this court to redraft Section Id by holding that “sections of laws mentioned in this section shall not be subject to the referendum,” as the respondent’s argument would require, us to do. When the framers desired the Constitution to apply to sections of laws, as in Section lc, they expressed that desire in plain language. Sections lc and Id were drafted and adopted at the same time, and we must assume that the framers intended the terms “laws” and “sections of laws” to have consistent meanings in both. It logically follows that since a law containing a section appropriating funds for current expenses of state government is a law mentioned in Section Id, it is not a law subject to the referendum.

2 Respondent argues that the conditional influence of the competitive bidding provision upon the law under review required a decision that the provision was not subject to referendum. Whether such a fine distinction was intended to be set forth for the purposes of that case or for all time we need not here decide. In the cause sub judice, we find that Section 5 of the law, conceded to be not subject to referendum, is clearly a condition upon the remaining sections of the law.

3 Chief Justice Nichols stated further at pages 86 and 87:

“When, then, under our constitution, does a nonemergency act go into effect?

“This question involves a construction of two apparently conflicting sections of the Constitution, that of Section lc of Article II and Section 16 of Article II.

“Section 16 of Article II provides that if the governor approves a bill he shall sign it and thereupon it shall become a law. Section lc of Article II provides that ‘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.’

“The ‘except as herein provided’ clause has undoubted reference to the provision in Section Id of Article II, to the effect that laws providing for tax levies, etc., and emergency laws shall go into immediate effect.”

The “etc.” referred to in the above language could only mean “appropriations for the current expenses of the state government and state institutions.”

Eight years after the decision in Lathrop, supra, in State, ex rel. Keller, v. Forney (1923), 108 Ohio St. 463, 465, Wanamaker, J., after citing portions of Sections lc and Id of Article II of the Ohio Constitution, stated the following:

“We have therefore a general policy of power reposed in the people to approve or disapprove, to adopt or reject, by referendum, any law or section of law passed by the General Assembly of Ohio, with these three particular exceptions:

“(1) ‘Laws providing for tax levies.’

“(2) Laws providing for ‘appropriations for the current expenses of the state government and state institutions.’

“(3) ‘Emergency laws necessary for the immediate preservation of the public peace, health or safety.’ ”

4 Respondent cites several cases in his brief which, it is claimed, direct this court to arrive at a contrary result. However, even a casual view of those decisions exhibits their precedential deficiencies. The facts of the most relevant decision (State, ex rel. Keller, v. Forney, supra) are inapposite to the facts of the cause at bar. That case presented the question whether the Taft Act was a law “providing for tax levies” within the meaning of Section Id, Article II, and thereby expressly exempted from the referendum provisions of Section lc of the Article. After examining the sole question of whether the Act qualified under Section Id, the court concluded, at page 471, “[t]here can be no doubt that the Taft Act is not a law ‘providing for tax levies,’” and thereby decided the issue in the negative.