Hoover v. Board of County Com'rs, Franklin County

• Decision Date: 09 August 1985
• Docket Number: No. 84-401,84-401
• Parties: , 19 O.B.R. 1 HOOVER, Appellee and Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS, FRANKLIN COUNTY, Ohio et al, Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 1

19 Ohio St.3d 1

482 N.E.2d 575, 19 O.B.R. 1

HOOVER, Appellee and Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS, FRANKLIN COUNTY, Ohio et al, Appellants and Cross-Appellees.

No. 84-401.

Supreme Court of Ohio.

Aug. 9, 1985.

Syllabus by the Court

Where 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.

On May 27, 1982, plaintiff-appellee and cross-appellant, M.L. Joe Hoover, in his capacity as a taxpayer, filed a complaint in two counts seeking declaratory and injunctive relief against defendants-appellants and cross-appellees, Board of County Commissioners of Franklin County, the County Hospital Commission of Franklin County, and the Jess Howard Electric Company. Plaintiff sought to enjoin the performance of certain construction contracts awarded without the normally required public competitive bidding pursuant to an exception to such requirements embodied in R.C. 140-051. ¹ Plaintiff alleged that this statute was enacted in violation of the Ohio Constitution, that it is consequently without legal effect, and that the contracts awarded pursuant to its provisions are therefore void. Plaintiff further sought a declaration to the effect that R.C. 140.051 was in fact enacted in violation of Sections 15(C) and 15(D) of Article II of the Ohio Constitution, which provide, respectively, that every bill shall be considered by each branch of the legislature on three different days, and that no bill shall contain more than one subject.

Defendants board and commission moved to dismiss the complaint on the grounds that the procedural provisions of Sections 15(C) and (D) are directory rather than mandatory, and therefore plaintiff had failed to state a cause of action upon which relief could be granted. The trial court sustained the motion.

The court of appeals reversed and remanded, holding that the complaint did state a claim for relief under Section 15(C), Article II of the Ohio constitution. The court reasoned that all prior authority to the effect that the "three reading" provision was directory only was obviated by its subsequent amendment to its present form. Emphasizing that the current version of Section 15(C), unlike its predecessor, requires that a journal entry be made of each consideration of the bill, the court held that "the journals and not the enrolled bill are made the exclusive source of proof that the Legislature complied with the constitutional requirement." Thus, the existence of fewer than the required three entries in the journal indicating the proper number of considerations in each house renders an act invalid. Since plaintiff could conceivably prove that the journal reflects only two entries regarding R.C. 140.051, it was error to dismiss his complaint for failure to state a cognizable claim.

However, the court declined to recognize a cause of action in Count I of plaintiff's complaint, i.e., that portion which alleged a violation of Section 15(D), Article II of the Ohio Constitution, which provides that no bill shall contain more than one subject. The court, with obvious reluctance, ruled that Ohio law insulates enactments from invalidation on this basis due to the judicial characterization of the "one-subject" rule as directory rather than mandatory.

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Topper, Alloway, Goodman, DeLeone & Duffey, N. Victor Goodman, John Duffey and John F. Stock, Columbus, for appellee and cross-appellant.

Michael Miller, Pros. Atty., Joan G. Robinson and James R. Kirk, Columbus, for appellants and cross-appellees Bd. of County Com'rs and County Hosp. Com'n.

Robert L. DeVictor, Columbus, for appellant and cross-appellee Jess Howard Elec. Co.

Anthony Celebrezze, Jr., Atty. Gen., and Richard A. Green, Columbus, for amici curiae, Ohio General Assembly, Ohio Governor and Ohio Director of Development.

Before CELEBREZZE, C.J., and SWEENEY, LOCHER, HOLMES, BROWN, DOUGLAS and WRIGHT, JJ.

CLIFFORD F. BROWN, Justice.

I

The first issue posed by the instant cause is whether the validity of a statute may be challenged on the basis that the bill from which it originated was considered fewer than three times on three different days in each house of the legislature. We hold 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.

Section 15(C), Article II of the Ohio Constitution provides in 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. * * * "

In Miller v. State (1854), 3 Ohio St. 475, this court first addressed the question of the validity of a statute which had allegedly been enacted in violation of the "three reading" requirement. In that case, we refused to look beyond the enrolled bill to determine compliance with the requirement. " [W]here the journals show that a bill was passed, and there is nothing in them to show that it was not read as the constitution requires, the presumption is that it was so read, and this presumption is not liable to be rebutted by proof. * * * " Id. at 484. Thus, a rule evolved whereby the three-reading requirement was viewed as merely "directory," such that compliance by the General Assembly was a matter for enforcement by that body and not by judicial interference. This approach was adopted in subsequent cases dealing with other provisions of Article II relating to the procedures for passing enactments. See, e.g., Pim v. Nicholson (1856), 6 Ohio St. 176; State, ex rel. Atty. Gen., v. Covington (1876), 29 Ohio St. 102, paragraph seven of the syllabus. ²

However, it must be noted that Miller, supra, concerned the former Section 16, Article II of the Ohio Constitution, which read in pertinent part: "Every bill shall be fully and distinctly read, on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending, shall dispense with this rule. * * "

In 1973 the above provision was amended and the current version, embodied in Section 15(C), was adopted. Significantly, language was added to the effect that " * * * every individual consideration of a bill * * shall be recorded in the journal of the respective house * * *." (Emphasis added.) 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. As a result of the new provision, there is no need to look anywhere but at the journals to determine whether the proper procedure has been followed. Cf. Leach v. Brown (1957), 167 Ohio St. 1, 8-9, 145 N.E.2d 525 (Taft, J., concurring).

The presumption of propriety in the passage of enactments which arises from the silence of the legislative journals cannot exist where the Constitution, as here, specifically mandates that the procedure be recorded in the journals. Bradley Lumber Co. v. Cheney (1956), 226 Ark. 857, 295 S.W.2d 765. The obvious purpose of maintaining a journal is to provide a source for ascertaining that the proper procedure was followed in enacting a bill, as proof of its validity. See McClellan v. Judge of Recorder's Court (1924), 229 Mich. 203, 201 N.W. 209.

Therefore, as a result of the 1973 amendment of former Section 16, adding a requirement that each of the three considerations of a bill be recorded and entered into the legislative journal, our holding in Miller, supra, is no longer controlling. We now hold that where the Ohio Constitution mandates that a recordation be made in the legislative journals reflecting that a particular step in the enactment process had been taken, the absence of entries to that effect renders the enactment invalid.

The complaint of plaintiff in the instant cause must now be examined to determine if it may withstand a motion to dismiss for failure to state a claim upon which relief can be granted. In order for a court to dismiss a cause of action on such grounds, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, , syllabus.

Plaintiff alleged in Count II of his complaint that Am.Sub.S.B. No. 109, which subsequently became R.C. 140.051, did not receive consideration by the Senate on three different days as required by Section 15(C), Article II of the Ohio Constitution. According to the complaint, S.B. No. 109 was originally introduced to the Senate of the 113th General Assembly on March 14, 1979 to amend R.C. 2919.21 and to enact R.C. 2919.211 pertaining to criminal non-support. With minor amendments, the bill, which then became Am.S.B. No. 109, received three hearings in the Senate and was passed in that house. On June 17, 1980, the House of Representatives received Am.S.B. No. 109 from the Senate and on June 18 referred it to the Judiciary Committee. On November 19, 1980, the committee reported back to the House of Representatives a substitute bill, completely different in content from Am.S.B. No. 109 passed by the Senate. This bill proposed to amend R.C. 140.01 and to enact R.C. 140.051 "to facilitate the financing, acquisition and construction of hospital and health care facilities for the use of non-profit entities." Before this bill was taken up for consideration for the third time, it was again amended to add a provision for the Ohio licensure of Canadian physicians without examination.

Based on these facts, plaintiff alleged...