M. L. Joe Hoover v. Board of County Commissioners, Franklin County, Ohio

• Decision Date: 05 January 1984
• Docket Number: 84-LW-1400,83AP-79 (REGULAR CALENDAR)
• Citation: M. L. Joe Hoover v. Board of County Commissioners, Franklin County, Ohio, 83AP-79 (REGULAR CALENDAR), 84-LW-1400 (Ohio App. Jan 05, 1984)
• Parties: M. L. Joe Hoover, Plaintiff-Appellant v. Board of County Commissioners, Franklin County, Ohio et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

M. L. Joe Hoover, Plaintiff-Appellant v. Board of County Commissioners, Franklin County, Ohio et al., Defendants-Appellees.

No. 83AP-79 (REGULAR CALENDAR).

84-LW-1400 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

January 5, 1984

APPEAL from the Franklin County Court of Common Pleas.

MESSRS TOPPER, ALLOWAY, GOODMAN, DELEONE & DUFFEY, MR. N. VICTOR GOODMAN, MR. JOHN F. STOCK, and MR. JOHN J. DUFFEY, for appellant.

MR MICHAEL MILLER, Prosecuting Attorney, MS. JOAN G. ROBINSON and MR. JAMES R. KIRK, for appellees County Commissioners and County Hospital Commission.

MESSRS. LOMBARDO & DEVICTOR, MR. ROBERT L. DEVICTOR, for appellee Jess Howard Electric Company.

MESSRS. BAKER & HOSTETLER, MR. CHARLES E. SHANKLIN, and MR. RICHARD W. SIEHL, for amicus curiae, The Ohio Developmental Financing

Commission.

OPINION

WHITESIDE P.J.

Plaintiff M. L. Joe Hoover appeals from a decision of the Franklin County Court of Common Pleas and raises two assignments of error as follows:

"1. The Common Pleas Court erred in dismissing the complaint on the ground that it failed to state a claim upon which relief could be granted.

"2. The Common Pleas Court has jurisdiction under the doctrine of constitutional review to determine that Substitute Senate Bill 109, 113th Ohio General Assembly, having been enacted in violation of Article II, Section 15(C) and 15(D) of the Ohio Constitution, is not legally effective, and, accordingly, to hold Section 140.051, Revised Code to be unconstitutional and void; and the court erred in failing as enacted in such bill to accept and exercise such jurisdiction."

Plaintiff, suing as a taxpayer, filed a complaint in two counts for declaratory and injunctive relief against the Board of County Commissioners of Franklin County, Ohio (hereinafter the "Board"), the County Hospital Commission of Franklin County, Ohio (hereinafter the "Commission"), and the Jess Howard Electric Company on May 27, 1982. Plaintiff seeks to enjoin defendants from proceeding with certain contracts for the construction of the St. Anthony Hospital project, awarded by the Commission to Jess Howard Electric Co. pursuant to R.C. 140.051, on the basis that R.C. 140.051, providing an exemption from general competitive bidding laws for the contracts in question, was unconstitutionally enacted by the Ohio General Assembly and should, therefore, be declared legally ineffective. Count I of the complaint questions the constitutionality of R.C. 140.051 on the basis that the statute was enacted in violation of Section 15(D), Article II of the Ohio Constitution, which provides that no bill shall contain more than one subject. Count II of the complaint questions the constitutionality of R.C. 140.051 on the basis that the statute was enacted in violation of Article II, Section 15(C), of the Ohio Constitution, which provides that every bill shall be considered by each branch of the Legislature on three different days.

Defendants Board and Commission moved to dismiss the complaint pursuant to Civ. R. 12(B), asserting that the procedural requirements for statutory enactment found in Section 15 (C) and (D), Article II, of the Ohio Constitution are directory and not mandatory, and asserting that defendant Board was an improper party to the action since its only connection with the suit was as the owner of the real estate on which the hospital project is located. The trial court sustained the motion without explanation, and the judgment entry was filed. Plaintiff then filed a notice of appeal to this court.

The threshold question which must be answered in this case is whether a violation of the "three-day" or "one- subject" constitutional requirements found in Sections 15(C) and (D), Article II, is ever justiciable since, in order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, 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.

"Three-day" and "one-subject" requirements for the enactment of laws are, in one form or another, found in most state constitutions. Where a statute is challenged based upon failure to comply with such constitutional requirements for the enactment of legislation, resort must be had to the courts of the state, there being no other available tribunal. Ritzman v. Campbell (1915), 93 Ohio St. 246. Courts are, however, hesitant to interfere with legislative action and have developed three judiial doctrines to insulate laws enacted in violation of these constitutional requirements from attack. The first is the enrolled bill doctrine which considers the enrolled bill an absolute veracity which cannot be impeached by going behind it to extrinsic evidence, including the legislative journals; and the second is the related doctrine, the journal-entry rule, which holds the enrolled bill to be prima-facie evidence of the regular enactment of the law, but permits the legislative journals to be introduced to rebut the presumption and impeach the bill. The third is the classification of the constitutional provision as directory rather than mandatory. Ritzman v. Campbell, supra.

Ohio law follows a hybrid of the enrolled-bill doctrine and the journal-entry rule, wherein the enrolled bill is not impeachable by the journal except in those situations where the Ohio Constitution mandatorily requires that a journal entry be made. Leach v. Brown (1957), 167 Ohio St. 1.

Thus, in Ritzman v. Campbell, the Ohio Supreme Court held it to be proper to look behind the enrolled bill to the legislative journals to determine whether the bill was passed by a majority of the members elected to each house; but the journals cannot be inspected to ascertain if there is a difference between the content of the enrolled bill and the bill as it might be shown on the journals. Justice Taft, in his concurring opinion in Leach v. Brown, supra, at 8, explained the Ritzman decision in terms of Ohio's version of the enrolled bill doctrine as follows:

"* * * 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 * * *."

In Miller v. State (1854), 3 Ohio St. 476, a case relied upon by defendants herein, the question was whether the bill had been read on three different days in each house as required by Section 16, Article II of the Ohio Constitution, the predecessor of the current three-reading constitutional requirement. As adopted in 1851, Section 16 read in pertinent part as follows:

"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 the rule * * *."

Adhering to Ohio's version of the enrolled bill doctrine, the court in Miller at 484 refused to look behind the enactment to establish compliance with the three reading rule, stating that:

"* * * whether the constitution, in the particular under consideration, is merely directory or not, it can not be gainsaid. It seems to us, that where 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. If it be said, as was said in the argument, that this leaves the assembly at liberty to disregard the constitution, the answer is obvious, that a disposition to disregard it is no more to be imputed to the legislative than to the judicial department of the government, and ought not to be imputed to either. * * *"

On the other hand, the similar three-reading requirement of R.C. 731.17 applicable to municipal ordinances has been held to be mandatory rendering invalid an ordinance enacted with neither the three readings nor the requisite three-fourths vote dispensing with the requirement. Bloom v. Xenia (1877), 32 Ohio St. 461. Campbell v. Cincinnati (1892), 49 Ohio St. 463; Vinton v. James (1923), 108 Ohio St. 220; and Costakis v. Yorksville (1923), 109 Ohio St. 184.

In 1973, Section 16, Article II, Ohio Constitution was amended and new Section 15(C) was enacted as follows:

"(C) 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. No bill may be passed until the bill has been reproduced and distributed to members of the house in which it is pending and every amendment been made available upon a member's request."

Section 15(C)...