State ex rel. Allen v. Ferguson

• Decision Date: 07 March 1951
• Docket Number: No. 32432,32432
• Citation: 155 Ohio St. 26,97 N.E.2d 660
• Parties: , 44 O.O. 63 STATE ex rel. ALLEN et al. v. FERGUSON.
• Court: Ohio Supreme Court

Page 26

155 Ohio St. 26

97 N.E.2d 660, 44 O.O. 63

STATE ex rel. ALLEN et al. v. FERGUSON.

No. 32432.

Supreme Court of Ohio.

March 7, 1951.

Syllabus by the Court.

1. By Section 1220, General Code, with the approval and consent therein specified, the Director of Highways is authorized to use consulting engineers or traffic engineers as those terms are generally understood, even though such engineers are not regular employees of the director, and to make contracts employing such consulting engineers or traffic engineers to perform services necessary for the study of a turnpike project.

2. Upon the effective date of the turnpike act, vacancies occurred on the commission created by that act.

3. Although appointments of the Governor to fill such vacancies must be submitted to the present session of the Senate and appointees whom the Senate fails or refuses to confirm may not thereafter continue as members of the commission, the interim appointees have power and authority in the meantime to act as a turnpike commission.

4. Ordinarily, where a proceeding directly involves only one section of an act, it is not necessary to consider questions raised as to the constitutionality of other provisions of the act. Where, however, it appears improbable and unreasonable that the General Assembly would have enacted the section directly involved if the General Assembly knew that those other provisions of the act were unconstitutional, it is necessary if the question is raised, to consider the constitutionality of those other provisions in order to determine the validity of the particular section so involved.

5. The provision with respect to roads open to the public without charge, found in Section 19 of Article I of the Constitution, applies only to a situation where private property is appropriated without first making compensation to the owner. That section of the Constitution does not limit the power of the General Assembly to provide for the exercise of the right of eminent domain by the taking of private property necessary for the construction or repair of toll roads, except that, in such an instance, provision must be made for compensation in money to the owner before the taking.

6. The issuance and sale of bonds, which are payable solely from revenues derived from a turnpike project and which specifically state on their face that they do not constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision, do not result in a 'debt' of the state within the meaning of Section 3 of Article VIII of the Constitution. Kasch v. Miller, Supt., 104 Ohio St. 281, 135 N.E. 813, and State ex rel. State Bridge Comm. v. Griffith, Secy. of State, 136 Ohio St. 334, 25 N.E.2d 847, spproved and followed.

7. The facts, that under the turnpike act title to property acquired by the turnpike commission for the purpose of constructing a turnpike vests in the state and that such property is to be used to raise revenues to pay off bonds issued for the construction of the turnpike, do not, within the meaning of Section 4 of Article VIII of the Constitution, result in a gift or loan of the credit of the state of the holders of such bonds. Kasch v. Miller, Supt., 104 Ohio St. 281, 135 N.E. 813, and State ex rel. State Bridge Comm. v. Griffith, Secy, of State, 136 Ohio St. 334, 25 N.E.2d 847, approved and followed.)

8. Where legislation is of a classification which only authorizes the performance of acts or the authorization of others to perform acts to accomplish a lawful purpose, no delegation of legislative power results merely because broad discretion is conferred upon a party who is given such authority to determine whether or how that authority shall be exercised.

9. Subject to constitutional limitations, the General Assembly may ordinarily grant to an agency of the state power to do or authorize others to do anything which an individual might lawfully do and which such agency deems necessary to construct, maintain and operate a public project that the state itself would have authority to undertake. In such an instance it is not necessary, in order to avoid a delegation of legislative power, for the General Assembly to specify or define the particular action which may be taken or authorized or to limit such power in any way, other than by relating it to the construction, maintenance and operation of such public project.

On June 14, 1950, relators, a firm of consulting engineers, entered into a written agreement with the Director of Highways which provided for their performing certain services necessary for the study of a proposed turnpike project. This contract provided for payment of the relators' fees in installments. At the time of the filing of their petition, relators had performed all the services required by the agreement to be performed in order to entitle them to certain payments under the agreement, and the Director of Highways had transmitted to the Auditor of State vouchers for the issuance of warrants to relators for such payments. The auditor refused to issue the warrants. Thereupon, relators brought this original action against the Auditor of State, seeking a writ of mandamus compelling the auditor to issue the vouchers for such payments. The case is now before this court for hearing upon the demurrer of relators to the amended answer of the auditor.

Ed. D. Schorr and Charles J. Chastang, Columbus, for relators.

Robert L. Drury, Columbus, for respondent.

Herbert S. Duffy and C. William O'Neill, Attys. Gen., Joseph P. Kinneary, Nelson Lancione and Hugh A. Sherer, all of Columbus, for intervening petitioners.

TAFT, Judge.

The first question raised is whether the Director of Highways had authority to make the contract involved.

We believe that question may have been decided in State ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St. 268, 91 N.E.2d 512, where this court issued a writ of mandamus compelling issuance of a certificate of encumbrance certifying to the availability for expenditure by the Director of Highways of the sum of $100,000 for highway department 'engineering and other forces including salaries and other operating expenses' and the sum of $500,000 for 'consulting engineers and traffic engineers.' The Auditor of State was a party to that action and opposed the issuance of that writ.

However, in view of the importance of the question and since some of the arguments now made by the auditor in support of his contention on that question were not made in that case although they could have been made then, we will consider those arguments as though the question had not been previously decided.

In State ex rel. Alden E. Stilson & Associates, Ltd., v. Ferguson, Aud., 154 Ohio St. 139, 93 N.E.2d 688, this court did hold that the Director of Highways had no authority, independent of the turnpike act, to employ a firm of professional engineers. In that case, the only question involved was whether the Director of Highways was authorized to enter into a contract with a firm of professional engineers by the words in Section 1178-17, General Code, authorizing him to 'employ such assistants as are necessary to prepare plans and surveys.' (Emphasis added.)

Section 1220, General Code, which is a part of the turnpike act, reads:

'With the approval and the consent of the controlling board, the director of highways shall expend out of any funds available for the purpose such moneys as may be necessary for the study of any turnpike project or projects and to use its engineering and other forces, including consulting engineers and traffic engineers, for the purpose of effecting such study, and all such expenses incurred by the director of highways prior to the issuance of turnpike revenue bonds under the provisions of this act, shall be paid by the director and charged to the appropriate turnpike project or projects, and the director shall keep proper records and accounts showing each amount so charged. Upon the sale of turnpike revenue bonds for any turnpike project or projects, the funds so expended by the director of highways with the approval of the commission in connection with such project or projects shall be reimbursed to the department from the proceeds of such bonds.' (Emphasis added.)

Relators argue that the emphasized language in the foregoing section authorizes the director to use the engineering forces of the highway department and to use other forces including consulting engineers and traffic engineers. On the other hand, the auditor argues that the word 'its' (meaning the highway department's) modifies both the word 'engineering' and the word 'other.' The difficulty with this latter interpretation is that it results in giving no meaning to the words 'including consulting engineers and traffic engineers'. If, by 'consulting engineers and traffic engineers,' the General Assembly intended to designate only employees of the highway department it could have accomplished the same purpose without the use of such words, because such employees would have been covered by the words 'engineering and other forces'.

Furthermore, the 98th General Assembly which enacted Section 1220, General Code, effective September 1, 1949, also enacted Section 486-7a, General Code, effective July 28, 1949. The latter section pertains to positions, offices and employments in the state service and classifies them. Subparagrpah VII of that section, which pertains to engineering and applied sciences, classifies the various engineers employed in the state service. Nowhere in that section is reference made to either consulting or traffic engineers. Since the General Assembly did not make provision in Section 486-7a for the regular employment in the state service of consulting or traffic engineers, it is not reasonable to interpret the words 'consulting * * * and traffic engineers' in Section 1220, General Code, as including any...