State ex rel. Dickman v. Defenbacher

• Citation: 57 O.O. 134,164 Ohio St. 142,128 N.E.2d 59
• Decision Date: 27 July 1955
• Docket Number: No. 34194,34194
• Parties: , 57 O.O. 134 The STATE ex rel. DICKMAN, a Taxpayer, et al., Appellants, v. DEFENBACHER, Dir., et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 142

164 Ohio St. 142

128 N.E.2d 59, 57 O.O. 134

The STATE ex rel. DICKMAN, a Taxpayer, et al., Appellants, v. DEFENBACHER, Dir., et al., Appellees.

No. 34194.

Supreme Court of Ohio.

July 27, 1955.

Syllabus by the Court.

1. An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.

2. Where the General Assembly of Ohio enacts legislation providing for the appropriation of funds to certain veterans organizations for the public purpose of 'the rehabilitation of war veterans and for the promotion of patriotism,' and the release of such funds to the named organizations is made dependent upon the filing, by each, of a semiannual report of the expenditure of such appropriated funds for the prior six months to the state controlling board, this court cannot find that such legislation is unconstitutional.

The relators, appellants herein, originally brought this action in the Common Pleas Court of Franklin County on behalf of themselves and other taxpayers of the state of Ohio, seeking to enjoin the respondent state officers from paying to the respondent veterans organizations certain moneys which were appropriated to the said veterans organizations for the biennium beginning July 1, 1953, through June 30, 1955, by Amended House Bill No. 10 of the 100th General Assembly. This appropriation bill grants the following designated veterans organizations specific amounts as follows:

                American Legion of Ohio                          $72,375.00
                Department of American Veterans of World War II  $14,475.00
                Disabled American Veterans of World War II       $72,375.00
                83rd Division of A. E. F. Veterans' Association  $   482.00
                Ohio Rainbow Division                            $ 4,826.00
                United Spanish War Veterans                      $23,160.00
                37th Division A. E. F. Veterans' Association     $ 5,790.00
                Veterans of Foreign Wars                         $72,375.00
                

The bill further provides:

'The appropriations made in this act to the Department of American Veterans, Disabled American Veterans--Department of Ohio, 37th Division A. E. F. Veterans' Association, Ohio Rainbow Division, Veterans of Foreign Wars, 83rd Division A. E. F. Veterans' Association, American Legion of Ohio and United Spanish War Veterans, are for rehabilitation of war veterans and for the promotion of patriotism. These appropriations are made subject to reports by each of these organizations semiannually to the state controlling board and no release of funds for any six-month period shall be made until the state controlling board has received a report of the expenditures made from these appropriations for the prior six-month period.'

The petition alleges that the relators are taxpayers and citizens of the state of Ohio; and that respondent state officers are proposing to release official funds of the state to respondent private veterans organizations, pursuant to appropriations made by Amended House Bill No. 10 of the General Assembly of Ohio, for the fiscal biennium 1953-1955.

It is alleged that the respondent veterans organizations are private organizations, organized for private purposes, conducted privately and have memberships determined by the organizations themselves.

It is alleged that the releasing of such funds was in violation of the Constitution of Ohio and constituted an expenditure of public funds for private purposes and the taking of private property; that said appropriations were in direct violation of the Constitution of the State of Ohio, prohibiting the giving or lending of the state's credit to private individuals or organizations; and that the appropriation act in question is an unlawful delegation of the legislative power of the General Assembly of Ohio to the respondent veterans organizations.

The petition alleges further that demand had been made on the respondent state officers not to pay out this fund to said organizations, but that said demand had been refused.

Answers of the respondents affirmatively allege that they are and have been accredited to appear and practice before the Veterans Administration and to represent before it veterans of all the wars of our country and their dependents. (The Veterans administration administers and handles all the rehabilitation facilities of the federal government for veterans, including financial compensation for the wounded and disabled.)

Respondents answer further that the funds appropriated to each by the General Assembly of Ohio are for a public purpose, and that said state funds are not under the control of the various respondent veterans organizations or their officers, as such, but only so that the provisions of the act governing and controlling the expenditure of said appropriations may be carried out.

Respondents answer further that the funds appropriated by the state are not commingled with the dues and other funds of these veterans organizations, but the state funds are kept in separate bank accounts and a separate set of books maintained to account for the funds appropriated for the uses and purposes set out in the statute.

The respondents American Legion, Department of American Veterans, Veterans of Foreign Wars and Disabled American Veterans answer further that each is chartered by act of Congress and that eligibility for membership in each of said organizations is determined by act of Congress.

Respondents answer further that the funds appropriated are under the supervision of the state of Ohio; and that each of the respondent veterans organizations is required to report each six months to the controlling board setting out how expenditures of the funds for the previous six months have been made.

Each answer contains a general denial.

The Court of Common Pleas held that the appropriations complained of in the petition are unconstitutional and enjoined their payment.

The Court of Appeals for Franklin County dismissed the petition, denied the prayer, and held the appropriations to be valid.

The cause is now before this court upon appeal by relators on a constitutional question and also by the allowance of a motion to certify.

Jerome Goldman, Julian Rubin, Cincinnati, for appellants.

C. William O'Neill, Atty. Gen., Joseph S. Deutschle, Jr., William A. Carroll, Paul M. Herbert, Columbus, for appellees.

MATTHIAS, Judge.

The question presented to this court is whether the Legislature is constitutionally enjoined from making the appropriations, which are the subject of this litigation, for the purpose, as expressed by the legislation, of the rehabilitation of war veterans and the promotion of partiotism, and whether the Court of Appeals erred in rendering judgment in which it 'finds that the appropriations in this case are valid.'

The judgment of the Court of Appeals is as follows:

'This cause coming on to be heard on appeal on questions of law and fact, appellees' motion to dismiss having been withdrawn, and upon the record below as stipulated by the parties hereto in accordance with the stipulation filed herein, the court finds that the appropriations in this case are valid. It further appearing to the court that by such stipulation the parties hereto have agreed that the last quarterannual installment of the appropriations to the appellant veterans organizations in issue in this case which would ordinarily be available for payment on April 1, 1955, will not be paid to or received by said veterans organizations until final disposition of this case on appeal to the Supreme Court of Ohio, it is hereby ordered, adjudged and decreed that the petition be and the same is hereby dismissed, the judgment and findings of the Court of Common Pleas be and hereby are held for naught, that the permanent injunction issued by the court below be and the same is hereby dissolved, and the relief prayed for by plaintiff appellee in this case is hereby denied and the judgment herein is hereby entered in favor of defendants appellants.'

The question of the constitutionality of the enactment by the General Assembly having been raised in the Court of Appeals and the court having held that the legislation providing for the appropriations in this case is valid, the Court of Appeals necessarily determined that such legislation is constitutional.

Section 2, Article IV of the Constitution, entitled 'The supreme court', provides certain limitations in determining constitutional questions. Those limitations are as follows:

'No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.' (Emphasis added.)

The limitation on this court was discussed as follows by Nichols, C. J., in the case of State ex rel. Turner v. United States Fidelity & Guaranty Co., 96 Ohio St. 250, 258, 117 N.E. 232, 234.

'In this connection it is proper to observe that under the present Constitution the Supreme Court of Ohio has been clearly and distinctly directed by the people of Ohio that the power to set aside laws passed by the General Assembly, over which the people exercise the veto power through the referendum, is to be exercised with the greatest care. Not only does the long-established rule laid down in Cass v. Dillon, 2 Ohio St. 607, still obtain in all its restrictive effect, but the privilege of exercising the vast responsibility of this power has been hedged about with the most positive and drastic limitations. In section 2, article IV of the Constitution, the very section which gives the court its existence, it is provided that: 'No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges.' Much significance is to be attached to the inclusion of this provision in the...