Opinion
Nos. 35352 and 35369
Decided October 5, 1957.
Constitutional law — Amendment of Constitution — Proposed amendments by General Assembly to be entered on journals — Section 1, Article XVI, Constitution — House joint resolution proposing constitutional amendment — Senate proposed amendments to resolution — Resolution journalized in Senate without amendments — House concurred in amendments — President of Senate and Speaker of House signed amended resolution — Proposed amendment not "entered on journals" — Municipal corporations — Sale of excess utility products outside municipality.
APPEALS from the Court of Appeals for Franklin County.
Cause No. 35352 is an action instituted by Russell Leach, appellant herein, to enjoin the Secretary of State, appellee herein, from taking action with respect to a proposed amendment to Section 6, Article XVIII of the Constitution of Ohio, allegedly submitted to the electors for their approval or rejection by purported Amended House Joint Resolution No. 34 of the One Hundred and Second General Assembly.
The undisputed facts are that House Joint Resolution No. 34 was adopted by the House of Representatives on May 14, 1957. On May 22, 1957, the Standing Committee on Municipal Affairs of the Senate made a report to the Senate recommending certain amendments to such resolution, which report was accepted.
On May 28, 1957, the Senate voted on the adoption of the resolution, adopted the same and spread the resolution upon its journal without the amendments suggested by its standing committee. On the same day the House sought to concur in the amendments proposed to the Senate but, so far as the Senate journal is concerned, not made by that body.
On June 6, 1957, the Speaker of the House and President of the Senate each purported to sign House Joint Resolution No. 34, but each signed a copy designated Amended House Joint Resolution No. 34 containing the amendments suggested by the Senate committee, even though, according to its journal, the Senate had adopted House Joint Resolution No. 34 without such amendments. Such signed paper was certified to the Secretary of State as being Amended House Joint Resolution No. 34 and he has determined to prepare a form of ballot in accordance with the designation contained thereon.
The cause was heard in the Court of Common Pleas, and final judgment was rendered for the plaintiff.
Upon appeal to the Court of Appeals on questions of law and fact, that court entered judgment for the defendant, dismissed the action and dissolved the injunction issued by the Court of Common Pleas.
The cause is before this court as a matter of right, a constitutional question being involved.
Mr. Felix Mika, Mr. John M. Kelly, Mr. Maurice J. Gilbert, Mr. Joseph H. Crowley, Mr. Ralph S. Locher, Mr. Henry Bruestle, Mr. James W. Farrell, Jr., Mr. Andrew J. Burrows, Mr. Charles T. Lawton, Mr. Edward H. Jones, Mr. Alba L. Whiteside, Mr. Paul W. Steer, Mr. Louis E. Evans and Mr. Charles A. Pike, for appellant in cause No. 35352.
Mr. William Saxbe, attorney general, Mr. Huntington Carlile and Mr. Hugh A. Sherer, for appellee in cause No. 35352.
Mr. Felix Mika, Mr. John M. Kelly, Mr. Maurice J. Gilbert, Mr. Joseph H. Crowley, Mr. Ralph S. Locher, Mr. Henry Bruestle, Mr. James W. Farrell, Jr., Mr. Andrew J. Burrows, Mr. Charles T. Lawton, Mr. Edward H. Jones, Mr. Paul W. Steer, Mr. Louis E. Evans and Mr. Charles A. Pike, for appellant in cause No. 35369.
Mr. William Saxbe, attorney general, Mr. Huntington Carlile and Mr. Hugh A. Scherer, for appellees in cause No. 35369.
It should be noted that this cause is not one which requires the concurrence of at least all but one of the judges of this court since it does not involve the constitutionality of a law but rather the application of a section of the Constitution with reference to an action of the General Assembly purporting to submit a constitutional amendment to the electors of the state.
It should be noted further that we would have a different question before us if timely action had not been taken in the present cause and the purported amendment to the Constitution had been submitted to the voters and ratified by them before the legality of such action was challenged.
Section 1, Article XVI of the Constitution, reads as follows:
"Either branch of the General Asembly 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."
As we have said, the House of Representatives on May 14, 1957, adopted a joint resolution submitting an amendment. A Senate committee later recommended certain amendments, substantially changing the resolution of the House, and thereafter the Senate voted upon the adoption of the joint resolution but entered upon its journal the original House joint resolution with the yeas and nays of the vote. The Senate journal recites, "The question being on the adoption of the joint resolution reading as follows," and thereafter recites the original resolution as submitted by the House.
It is true that the Senate journal designated the original House resolution, as spread thereon, as amended House resolution, and that the House journal shows an acceptance by the House of the Senate amendments, but, nevertheless, the journal of the Senate unqualifiedly shows that the wording of the resolution upon which it voted, with the yeas and nays of the vote, was in the language of the original House resolution.
Section 1, Article XVI of the Constitution, contains a mandatory provision that any proposed amendment to the Constitution shall be entered on the journals, with the yeas and nays, and assuredly the amendment proposed to be submitted by the Secretary of State to the electors is not the one which was entered on the journal of the Senate.
The defendant insists, however, that, since the Speaker of the House and the President of the Senate signed a copy designated Amended House Joint Resolution No. 34, containing the amendments suggested by the Senate committee, although the Senate had spread House Joint Resolution No. 34, without such amendments, upon its journal and showed the yeas and nays of the vote, the court was powerless to dispute the document which the two presiding officers had signed.
Reliance is placed upon the case of Ritzman v. Campbell, 93 Ohio St. 246, 112 N.E. 591, L.R.A. 1916E, 1251, where it was held by this court that a duly enrolled bill, although publicly signed by the presiding officer of each house, in the presence of the house over which he presides, while the same is in session and capable of doing business, and afterward approved by the Governor and filed by him with the Secretary of State, as provided in Article II of the Constitution, may be impeached on the ground that it had not received a constitutional majority vote of the members of both branches of the General Assembly, and upon this question the legislative journals must provide the appropriate as well as the conclusive evidence. Nevertheless, such enrolled bill, so authenticated, is conclusive upon the courts as to the contents thereof, since the attestation of the presiding officers of the General Assembly is a solemn declaration of a co-ordinate branch of the state government that the bill as enrolled was duly enacted by the General Assembly.
If the proposal to amend the Constitution should be considered as a bill enacted by the General Assembly, the Ritzman case would be dispositive of the question before us, but the majority of this court is of the opinion that a proposal to amend the Constitution is not an inherent legislative prerogative. The action of the General Assembly in connection therewith is the exercise of a special power granted to the General Assembly, which must be strictly complied with.
As stated in 11 American Jurisprudence, 633, Section 28:
"The power of the Legislature to initiate changes in the existing organic law is a delegated power and one which is generally to be strictly construed under the limitations imposed by the authority by which it has been conferred. In submitting propositions for the amendment of the Constitution, the Legislature is not exercising its legislative power or any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power which is conferred upon it by the people and which might with equal propriety have been conferred upon either house, the Governor, a special commision, or any other body or tribunal. * * *
"It is usually held that a constitutional provision as to amending the Constitution, otherwise than by a convention, is mandatory, and not directory. The reason for such a construction is obvious. The Constitution is the organic and fundamental law, and to permit a change in it without a strict adherence to the rules therein laid down would be a step in the direction of the destruction of the stability of the government."
In 16 Corpus Juris Secundum, 49, Section 9, it is stated:
"It is generally necessary that there be due compliance on the part of the Legislature with all constitutional requirements, as preliminary to the submission to the people for ratification of a proposed constitutional amendment, including such formal steps as the reading of the proposed amendment before each chamber, the entry of such amendments on the journal with the yeas and nays thereon, the approval by the required number of votes, usually more than a mere majority, and ratification by a succeeding Legislature where necessary. An omission of a required step cannot be overlooked because of any inconvenience that may result through failure to adopt the proposed amendment * * *."
See Switzer v. State, ex rel. Silvey, 103 Ohio St. 306, 133 N.E. 552, and State, ex rel. Greenlund, v. Fulton, Secy. of State, 99 Ohio St. 168, 124 N.E. 172.
Since Section 1, Article XVI of the Constitution, provides that a proposed amendment shall be entered upon the journal of each house, with the yeas and nays, and since, in the instant case, the amendment, which was entered upon the journal of the Senate, with the yeas and nays, and apparently voted on by that body, is entirely different from the amendment proposed to be submitted to the people, it cannot be said that the provisions of Section 1, Article XVI, have been complied with.
It is contended by the defendant that the provision that the proposed amendment shall be entered on the journals is satisfied by a mere reference and not the actual spreading of the proposed amendment upon the journals. However, this court has defined the words, "entered on the journal."
As to the law, which requires all judgments and orders of a court to be "entered on the journal" of the court, this court has said that such a provision requires an entry of the entire judgment or order upon the journal, and that mere reference to a judgment or order is insufficient. Coe v. Erb, 59 Ohio St. 259, 52 N.E. 640, 69 Am. St. Rep., 764; Fairchild v. Lake Shore Electric Ry. Co., 101 Ohio St. 261, 128 N.E. 168; State, ex rel. Chapman, v. Urschel, 104 Ohio St. 172, 135 N.E. 630; Will v. McCoy, 135 Ohio St. 241, 20 N.E.2d 371; Krasny v. Metropolitan Life Ins. Co., 143 Ohio St. 284, 54 N.E.2d 952; and Brown, Admx., v. L.A. Wells Construction Co., 143 Ohio St. 580, 56 N.E.2d 451.
It seems to us that the language, "such proposed amendments shall be entered on the journals, with the yeas and nays," clearly means that they must be spread in full upon such journals.
Since the proposed amendment which was spread in full upon the Senate journal, and which was apparently favorably voted on by the Senate, is radically different from the amendment proposed to be submitted to the electors, we are of the opinion that the Common Pleas Court was correct in enjoining the defendant from taking any action with regard to the amendment which he proposes to submit to the electorate at the coming November election.
In view of what we have said, it is unnecessary to consider the other errors assigned by the plaintiff.
The judgment of the Court of Appeals is reversed and the cause remanded to that court with instructions to issue the injunction as prayed for.
Cause No. 35369 is an action for a writ of mandamus instituted in the Court of Appeals, which, if allowed, would result in the submission to the electors at the coming November election of the proposed amendment as embodied in the original House Joint Resolution No. 34 as adopted by the House on May 14, 1957. However, to justify the allowance of a writ of mandamus, the right to it must be clear, and certainly, in view of the confused state of the proceedings in the House and Senate with reference to the original House resolution, it can hardly be said that there is a clear right to a writ in cause No. 35369.
The judgment of the Court of Appeals, dismissing the petition and rendering judgment for the respondent, is, therefore, affirmed.
Judgment reversed in cause No. 35352.
Judgment affirmed in cause No. 35369.
ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.
WEYGANDT, C.J., and HERBERT, J., concur in cause No. 35369 and dissent in cause No. 35352.
MATTHIAS, J., not participating.
As indicated in paragraph one of the syllabus of Ritzman v. Campbell, 93 Ohio St. 246, 112 N.E. 591, L.R.A. 1916E, 1251, "a duly enrolled bill * * * may be impeached on the ground that it has not received a constitutional majority of the members elect of both branches of the General Assembly, and upon this question the legislative journals must provide * * * the conclusive evidence." Undoubtedly, the reason for this rule of law is that our Constitution mandatorily requires that "each house shall keep a correct journal of its proceedings, which shall be published," that "on the passage of every bill, in either house, the vote shall be taken by yeas and nays, and entered upon the journal," and that "no law shall be passed, in either house, without the concurrence of a majority of all the members elected thereto." Section 9 of Article II of the Constitution. If those mandatory requirements are complied with, there never should be any necessity to look at anything other than the published journals of the House and Senate to determine whether a particular bill received the vote required for its passage.
On the other hand, there is no constitutional requirement that the words of a proposed bill should be entered on the journal of either house. Hence, an examination of the legislative journals will ordinarily not disclose the words of a bill and it is necessary to look elsewhere for that information. Obviously, the enrolled bill will usually be the most reliable source of that information and hence, as indicated in paragraph two of the syllabus of the Ritzman case, "such enrolled bill" when duly authenticated as required by our Constitution (Section 17 of Article II) "is conclusive * * * as to the contents thereof."
Where, however, as with respect to constitutional amendments proposed by a branch of the General Assembly, our Constitution requires that such a proposed amendment "be entered on the journals" of each house "with the yeas and nays" (Section 1 of Article XVI) and further requires that "each house shall keep a correct journal of its proceedings, which shall be published" (Section 9, Article II), there should never be any need to look elsewhere to determine the words of such a proposed constitutional amendment and hence there would appear to be no reason for looking to any enrolled copy of any joint resolution for that information. See State v. Kiesewetter, 45 Ohio St. 254, 259, 12 N.E. 807. The published journals of both houses are obviously much more readily available for examination, not only by members of the General Assembly but by others, than any enrolled copy of a bill or legislative resolution. This being so, it is more likely that any mistakes in those journals will come to the attention of members interested in eliminating them than will mistakes in the single enrolled copy of a bill or a resolution.
The dissenting opinions apparently assume that there was a mistake in recording what the Senate approved when it voted on May 28. However, unless we resort to inference, perhaps fortified by parol evidence, it may be that there was no such mistake but, instead, there was a mistake in recording in the Senate journal for May 22 the report of the Senate committee relative to House Joint Resolution No. 34 and that mistake initiated the references to Senate amendments thereof found in subsequent House and Senate journals. Apparently, when they drafted Section 1 of Article XVI and Section 9 of Article II, the framers of our Constitution wisely desired to avoid any resort to inference or parol evidence with regard to the wording of such proposed constitutional amendments.
As to case No. 35369, the journal of the House clearly indicates that, when it concurred in the supposed Senate amendments, it necessarily rescinded its agreement to the proposed constitutional amendment in the form originally approved by it.
Under the law this court is not permitted to concern itself with the merits or demerits of the proposed constitutional amendment.
The sole question in cause No. 35352 is whether the action of the General Assembly has been such as to afford the voters of Ohio an opportunity to express their approval or disapproval of the proposal.
Restated and reduced to its lowest terms, the issue before this court is whether a single conceded technical error by the Clerk of the Senate shall be allowed to nullify the other numerous and important steps correctly followed by the General Assembly in adopting the amended joint resolution by a unanimous vote in both the Senate and the House of Representatives.
Briefly, the resolution was introduced in the House of Representatives and adopted by a vote of 108 to 3. It was then sent to the Senate where it was referred to the Committee on Municipal Affairs. That committee, after consideration, recommended certain amendments in its report to the Senate. The report was accepted by the Senate and placed on its journal of which every member of the General Assembly received a printed copy. Subsequently the Senate adopted the amended resolution by a vote of 29 to 0. Then came the sole error when the Clerk simply miscopied the original instead of the amended resolution. The resolution, labeled "Amended," was returned to the House of Representatives with a statement containing the exact amendments adopted by the Senate. This statement was incorporated in the printed journal of the House of Representatives. By a vote of 118 to 0 the House of Representatives concurred in those specific amendments and so informed the Senate. Containing those amendments, the printed resolution was duly signed by both the President of the Senate and the Speaker of the House of Representatives.
That no member of the General Assembly could have been misled by the single obviously technical error is demonstrated conclusively by the simple fact that the House of Representatives was requested to concur in the specific amendments and did so. Otherwise there could have been no conceivable reason for requesting the House of Representatives to vote on the resolution a second time.
These circumstances would seem to present a typical situation for the application of the salutary principle enunciated by this court in the second paragraph of the syllabus in the case of Ritzman v. Campbell, 93 Ohio St. 246, 112 N.E. 591, L.R.A. 1916E, 1251, which never has been overruled. It is interesting to note that the opinion in that case was written by Chief Justice Nichols who previously had served as Lieutenant Governor of Ohio and hence ex officio as President of the Senate. Obviously he was not indulging in abstract theory but spoke from actual experience in the General Assembly.
Inasmuch as a joint resolution must be authenticated in exactly the same manner as an ordinary bill, there is no valid reason for confusing the law by attempting an unrealistic distinction.
The judgment of the Court of Appeals should be affirmed and the voters of Ohio afforded an opportunity to approve or disapprove the proposed constitutional amendment.
I am unable to concur in the per curiam opinion of the majority in cause No. 35352.
The pertinent facts are undisputed. The House journal for May 14, 1957 (page 16), shows the adoption of House Joint Resolution No. 34 as originally introduced, which proposed to amend Section 6, Article XVIII of the Ohio Constitution, by adding the words, "provided that such fifty per centum limitation shall not apply to the sale of water and sewage services." This was the only proposed change contained in the original resolution. The vote was yeas 108, nays 3, followed by the names of the members voting as indicated.
The Senate journal for May 22nd shows the acceptance of the report of the Standing Committee on Municipal Affairs, recommending four specific amendments (set out in full) to House Joint Resolution No. 34 and further recommending its adoption when so amended.
The Senate journal for May 28th shows that "Amended House Joint Resolution No. 34" was taken up. The text which follows (page 33) is an exact copy of original House Joint Resolution No. 34. The vote was yeas 29, nays 0, with the names of the Senators voting listed. The House journal for the same date, May 28th, shows (page 65) receipt of a message from the Senate that the Senate had concurred in the adoption of "Amended House Joint Resolution No. 34" with the same four amendments specified as are contained in the Senate journal for May 22nd (page 6) and requesting the concurrence of the House in the four specified amendments. The House vote is then shown (page 66) as yeas 118, nays 0, followed by the names of the members voting. The Senate journal for May 29th (page 3) records a message from the House that it had concurred in these Senate amendments.
In the face of these unanimous "yea" votes of both branches of the General Assembly and the language of Amended House Joint Resolution No. 34 as it appears in engrossed form, authenticated by the Speaker of the House in the presence of the House (House journal, June 6, page 1) and by the President of the Senate in the presence of the Senate (Senate journal, June 6, page 2), this court is being asked to permanently nullify such action because of a clearly apparent clerical error in the preparation of the Senate journal for May 28th. Either the title or the text of the joint resolution as it appears therein is incorrect. They are not reconcilable.
In the light of these circumstances, I am again impressed with the logic and good sense of the decision of this court in the case of Ritzman v. Campbell, 93 Ohio St. 246, 112 N.E. 591, L.R.A. 1916E, 1251. Recognizing the fact that there an enrolled bill was under consideration rather than a proposed constitutional amendment as here, I see no reason whatever to distinguish the situation as to the principle involved. It was there held that an "enrolled bill, so authenticated, is conclusive upon the courts as to the contents thereof." The force of that holding seems equally authoritative here.
Nichols, C.J., in his opinion (page 262), recognized the pressures of the closing days of a legislative session in the following language:
"The joint enrolling committees of the General Assembly and the clerical forces of both bodies are fairly overrun with bills, and must of necessity labor to the point of exhaustion.
"The wonder is not that some mistakes creep into our laws, but rather that more serious and blundering errors are not to be found. It is really a tribute to the efficiency of the clerical forces of the General Assembly that so much of certainty and correctness is had."
The majority are of the opinion that the language of Section 1 of Article XVI, "such proposed amendments shall be entered on the journals," is mandatory to such an extent that the obvious clerical error made in the preparation of the Senate journal for May 28th constitutes a failure of compliance. In my judgment, a close examination of the House journal and the Senate journal covering all references to this proposed constitutional amendment discloses such compliance as to clearly validate and support the engrossed copy of the joint resolution unanimously passed as "Amended" House Joint Resolution No. 34 and authenticated by the Speaker of the House and the President of the Senate.
In People, ex rel. Elder, Treas., v. Sours (1903), 31 Colo. 369, 74 P. 167, 102 Am. St. Rep., 34, a relatively similar situation was presented. The court there upheld the validity of the proposed constitutional amendment in the language as it was enrolled and authenticated. This same principle was followed in the case of Martien v. Porter (1923), 68 Mont. 450. See, also, People, ex rel. Board of Supervisors, v. Loomis, 135 Mich. 556, 98 N.W. 262.
In my view, the provision of Section 17 of Article II, 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," is equally controlling with the provisions of Section 1 of Article XVI and, there being no dispute as to the authentication made in this case, I am of the opinion that no injunction should be allowed to prevent the Secretary of State from submitting the proposed amendment to Section 6 of Article XVIII, as so authenticated, to the electorate of Ohio for a vote on the question of its adoption.