Leach v. Brown, s. 35352

• Decision Date: 05 October 1957
• Docket Number: Nos. 35352,35369,s. 35352
• Citation: 167 Ohio St. 1,145 N.E.2d 525
• Parties: , 3 O.O.2d 346 LEACH, Appellant, v. BROWN, Sec'y of State, Appellee. The STATE ex rel. FARRELL, Jr., Appellant, v. BATEMAN, Clerk of Senate, et al., Appellees.
• Court: Ohio Supreme Court

Page 1

167 Ohio St. 1

145 N.E.2d 525, 3 O.O.2d 346

LEACH, Appellant, v. BROWN, Sec'y of State, Appellee.

The STATE ex rel. FARRELL, Jr., Appellant, v. BATEMAN, Clerk of Senate, et al., Appellees.

Nos. 35352, 35369.

Supreme Court of Ohio.

Oct. 5, 1957.

Felix Mika, Youngstown, John M. Kelly, Akron, Maurice J. Gilbert, Dayton, Joseph H. Crowley, Ralph S. Locher, Cleveland, Henry Bruestle, James W. Farrell, Jr., Cincinnati, Andrew J. Burrows, Andrew J. Burrows, Jr., Delaware, Charles T. Lawton, Toledo, Edward H. Jones, Galion, Alba L Whiteside, Columbus, Paul W. Steer, Cincinnati, Louis E. Evans, Columbus, and Charles A. Pike, Lisbon, for appellants.

William Saxbe, Atty. Gen., Huntington Carlile and Hugh A. Sherer, Columbus, for appellees.

PER CURIAM.

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 assembly 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 disignated 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, §§ 16, 17 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 apropriate 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 commission, 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 C.J.S. Constitutional Law § 9, p. 49, 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 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, 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 journals.'

As to the law, which requires all judgments and orders of a court to be 'entered on the journals' 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 R. 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 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 redically 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...