State ex rel. Foreman v. Brown

• Decision Date: 19 April 1967
• Docket Number: No. 40903,40903
• Citation: 226 N.E.2d 116,10 Ohio St.2d 139,39 O.O.2d 149
• Parties: , 39 O.O.2d 149 The STATE ex rel. FOREMAN et al., v. BROWN, Secy. of State.
• Court: Ohio Supreme Court

Page 139

10 Ohio St.2d 139

226 N.E.2d 116, 39 O.O.2d 149

The STATE ex rel. FOREMAN et al., v. BROWN, Secy. of State.

No. 40903.

Supreme Court of Ohio.

April 19, 1967.

Syllabus by the Court.

1. Section 1 of Article XVI empowers the General Assembly to provide for submission of a constitutional amendment, proposed by the General Assembly pursuant to that section, at a special election on a certain day; and the General Assembly may authorize such election by a joint resolution without enacting a statute.

2. By providing that proposed constitutional amendments submitted by the General Assembly may be submitted at general elections, Section 3501.02(E), Revised Code, has not prohibited the submission of such a proposed constitutional amendment at a special election.

3. Section 3501.02, Revised Code, does not conflict with the action taken by the General Assembly in Amended Substitute House Joint Resolution No. 22 in calling a special election on May 2, 1967, for submission of the Ohio Bond Commission amendment to the Constitution.

4. The single general object of the proposed Ohio Bond Commission amendment is the creation of a bond commission to raise funds by issuing bonds; and the fact, that the proposal limits the authority of the commission by specifying the purposes for which money may be raised and used, does not turn the proposal into a proposal for more than one amendment.

Relators filed a petition in this court on April 5, 1967, seeking a writ of mandamus ordering the Secretary of State to advise, instruct and compel his representatives, the county Boards of Elections, not to proceed further with a special election on May 2, 1967, on a constitutional amendment, proposed by the 107th General Assembly in Amended Substitute House Joint Resolution No. 22. That proposed amendment would add Section 2i to Article VIII of the Ohio Constitution. It has been designated as Issue No. 1 and is generally referred to as the Ohio Bond Commission Amendment.

Several other individuals, who had instituted actions to enjoin such election in various counties of the state, have been permitted to intervene as parties.

On April 13, 1967, the case was submitted for decision on the petition and an agreed statement of facts.

Lucas, Prendergast, Albright & Warren, Rankin M. Gibson, Robert B. McAlister, Columbus, and James H. Dolan, Hamilton, for relators.

William B. Saxbe, Atty. Gen., Charles S. Lopeman, Bricker, Evatt, Barton & Eckler, Columbus, Peck, Shaffer & Williams, Cincinnati, and Power, Griffith, Jones & Bell, Columbus, for respondent.

Charles R. Miller, Ralph Rudd, Cleveland, and Paul M. Perkins, Canton, for intervenors.

TAFT, Chief Justice.

It is first contended that there can be no special election on May 2, 1967, because such election has not been validly called. ¹

Admittedly, Amended Substitute House Joint Resolution No. 22 by its words specifically calls a special election on May 2, 1967, for submission of the proposed Ohio Bond Commission Constitutional Amendment.

In support of the contention that no special election was validly called for May 2, 1967, it is contended (1) that a special election can only be provided for by statute; (2) that no statute provides for a special election on a proposed constitutional amendment on May 2, 1967, or at any other time ²; and (3) that the only statute providing for submission of a constitutional amendment provides for submission thereof at a general election.

However, Section 1 of Article XVI of the Ohio Constitution provides in part:

'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. * * *' (Emphasis added.)

These words clearly authorize the General Assembly to prescribe that an amendment to the ConstitutionProposed by the General Assembly pursuant to that section, be submitted at a special election on a certain date.

Unlike in many other parts of the Ohio Constitution, Section 1 of Article XVI does not require that this action be 'by law,' i. e., by enactment of a statute. Cf. Section 16 of Article I, Section 21 of Article II, Section 22 of Article II, Section 27 of Article II, Section 4 of Article III, Section 8 of Article IV, Section 3 of Article VI, Section 3 of Article XIII, Section 2 of Article XV, Section 3 of Article XV, Section 8 of Article XV, Section 2 of Article XVI, Section 2 of Article XVII, Section 14 of Article XVIII.

Hence, we are of the opinion that the General Assembly may authorize such special election on a certain date by a joint resolution without enacting a statute.

In State, ex rel. Attorney General, v. Kinney, Secy. of State (1897), 56 Ohio St. 721, 47 N.E. 569 (cited in the dissenting opinion), which involved Section 2 of Article XVI as in force before 1912, there was no constitutional basis whatever for the action which this court held that the General Assembly could not take by a joint resolution.

Of course, the General Assembly could not prescribe, in its resolution proposing a constitutional amendment, that it be submitted at a special election on a certain date, if Section 1 of Article XVI of the Constitution did not state that such amendment 'shall be submitted * * * at * * * a special or a general election as the general assembly may prescribe.'

It may also be noted that, before 1912, Section 1 of Article XVI of the Constitution authorized submission of an amendment proposed by the General Assembly only at 'the next election for senators and representatives.' The present provision, empowering the General Assembly to prescribe for submission at a special election, was not added until 1912.

It is argued that a joint resolution cannot ordinarily repeal a statute. However, in our opinion, if action, taken by the General Assembly pursuant to Section 1 of Article XVI and authorizing a special election on a certain day, does conflict with an unrepealed existing statute, the action so taken pursuant to specific constitutional authority would require a holding that the statute was unconstitutional so far as it conflicted with such action. In the instant case, it is not necessary for us to make such a holding of unconstitutionality because there is no conflict between any statute and the action taken by the General Assembly in Amended Substitute House Joint Resolution No. 22 in calling a special election. ³

The only statute relied upon as preventing such action is Section 3501.02, Revised Code, which reads:

'General elections in the state of Ohio and its political subdivisions shall be held as follows:

'(A) For the election of electors of president and vice-president of the United States, in the year 1932 and every four years thereafter; '(B) For the election of a member of the senate of the United States, in the years 1932 and 1934, and every six years after each of such years; except as otherwise provided for filling vacancies;

'(C) For the election of representatives in the congress of the United States and of elective state and county officers, in the even-numbered years; except as otherwise provided for filling vacancies;

'(D) For municipal and township officers, members of boards of education, members of the state board of education, judges and clerks of police and municipal courts, in the odd-numbered years;

'(E) Proposed constitutional amendments or proposed measures submitted by the General Assembly or by initiative or referendum petitions to the voters of the state at large may be submitted at the general elections in any year occurring at least sixty days, in case of a referendum, and ninety days, in the case of an initiated measure, subsequent to the filing of the petitions therefor. Unless provision is made by law or charter for the submission of a question or issue to the voters of a county, township, city, village, or school district at a special election, no special election shall be called, and the question or issue shall be submitted at a general election.'

If the word 'must' or 'shall' had been used in the first sentence ⁴ of paragraph (E) of that statute instead of 'may,' or if the word 'only' had there appeared after 'may' or after 'submitted,' a constitutional question would be presented. However, a mere statutory authorization for submission at a general election cannot be construed as a prohibition of submission at a special election.

The second sentence of that paragraph (E) of the statute obviously applies only to a submission 'to the voters of a county, township, city, village, or school district'-not to what is referred to in the first sentence thereof as a submission 'to the voters of the state at large.'

It is next contended that Amended Substitute House Joint Resolution No. 22 provides for more than one amendment of the Constitution, contrary to the part of Section 1 of Article XVI which reads:

'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.'

Amended Substitute House Joint Resolution No. 22 purports to submit 'a proposition to amend Article VIII (singular)' and states 'the text of said proposed amendment (singular)' as Section 2i of that Article which is set forth therein, and the schedule in that resolution refers to 'this proposed amendment' and 'the foregoing proposed amendment (singular).' There is admittedly nothing in Amended Substitute House Joint Resolution No. 22 to indicate an intention to submit, or suggest that the General Assembly believed that it was submitting, more than one proposed amendment to the Constitution.

Apparently, this contention is...