State ex rel. Ohio Turnpike Commission v. Allen

• Decision Date: 09 July 1952
• Docket Number: No. 33129,33129
• Citation: 107 N.E.2d 345,158 Ohio St. 168
• Parties: , 48 O.O. 115 STATE ex rel. OHIO TURNPIKE COMMISSION v. ALLEN.
• Court: Ohio Supreme Court

Page 168

158 Ohio St. 168

107 N.E.2d 345, 48 O.O. 115

STATE ex rel. OHIO TURNPIKE COMMISSION v. ALLEN.

No. 33129.

Supreme Court of Ohio.

July 9, 1952.

Syllabus by the Court.

1. The Turnpike Act, Sections 1201 to 1222 General Code, is a constitutionally valid legislative enactment. (State ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St. 268, 91 N.E.2d 512; State ex rel. Allen v. Ferguson, Aud., 155 Ohio St. 26, 97 N.E.2d 660, and State ex rel. MacDonald v. Ferguson, Aud., 155 Ohio St. 46, 97 N.E.2d 671, approved and followed.)

2. The provisions of Section 8 of Article III of the Constitution of Ohio requiring the Governor to state in his proclamation the purpose for which a special session of the General Assembly is called are mandatory. (State ex rel. Ach v. Braden, 125 Ohio St. 307, 181 N.E. 138, approved and followed.)

3. The Governor's proclamation convening a special session of the 99th General Assembly did not impose an unconstitutional limitation in providing that the call was 'for the purpose of considering the enactment of legislation to become effective immediately with respect only to the exercise of the power of eminent domain by the Ohio Turnpike Commission and amending Section 1208 of the General Code so as to permit the Ohio Turnpike Commission to exercise the power of eminent domain within the limits of the provisions contained in the Constitution of Ohio.'

The relator, the Ohio Turnpike Commission, has invoked the original jurisdiction of this court for the purpose of obtaining a writ of mandamus to require the respondent, as the secretary-treasurer of the commission, to seal and attest certain revenue bonds and a trust agreement securing them.

The respondent has filed an answer admitting the allegations of the petition but questioning the constitutional validity of the statutes pursuant to which the bonds are proposed to be issued and also the propriety of certain actions taken by the relator in connection therewith.

The relator has filed a demurrer to the respondent's answer on the ground that the allegations thereof do not constitute a defense.

Frank C. Dunbar, Jr., Columbus, Squire, Sanders & Dempsey, Henry J. Crawford and John Lansdale, Jr., Cleveland, for relator.

Knepper, White & Dempsey, Columbus, for respondent.

C. William O'Neill, Atty. Gen., Robert E. Leach and Hugh A. Sherer, Columbus, for the State of Ohio.

WEYGANDT, Chief Justice.

The revenue bonds here involved are intended to provide funds for the construction of a turnpike extending in a general easterly and westerly direction across northern Ohio.

For its authority to issue the bonds, the relator relies on the provisions of Section 1201 et seq., General Code.

In his answer the respondent interposes 15 questions of law for consideration by this court.

Perhaps this discussion should be prefaced by the observation that only questions of law are before the court. In other words, the controversy as to whether the construction of a turnpike is wise or unwise is, of course, a matter of legislative policy with which the court is not permitted to concern itself.

Several of the instant questions were presented in the earlier cases of State ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St. 268, 91 N.E.2d 512; State ex rel. Allen v. Ferguson, Aud., 155 Ohio St. 26, 97 N.E.2d 660; and State ex rel. MacDonald v. Ferguson, Aud., 155 Ohio St. 46, 97 N.E.2d 671.

Obviously the most serious contention of the respondent is that of the unconstitutionality of the so-called Turnpike Act. If these statutes are violative of any provision of the Constitution of Ohio, as insisted, this court has not only the power but the clear duty to so hold. Even in these bewildering and chaotic days, it should be manifest beyond cavil that if the courts were required to recognize and enforce legislative enactments which contravene organic law, a constitution could soon become meaningless.

The relator contends that several of the constitutional issues were not only raised but finally decided in the earlier cases, supra. However, it is urged by the respondent that a determination of those issues in the Allen case, supra, was not necessary for the decision and that hence that part of the pronouncement was obiter dictum.

The writer of the instant opinion shares that view and so indicated in his concurrence in the judgment and in part of the syllabus. But now those issues are squarely before the court and are a necessary part of the dicision.

In the syllabus of the Kauer case a majority of the court held in part:

'3. Where the director of a department has been authorized by law to expend money for certain additions and betterments, an appropriation to his department for additions and betterments, without specifying any particular additions or betterments, constitutes, within the meaning of Section 22 of Article II of the Constitution, a specific appropriation of money for those additions and betterments which he had previously been authorized by law to make.

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'5. Expenditures for the study of a turnpike project, pursuant to Section 1220, General Code, are part of 'the state's share of the cost of constructing * * * the state highways of this state,' within the meaning of those words as found in Section 5541, General Code; and money so expended would, as contemplated by Section 5 of Article XII of the Constitution, be used for the stated object of the tax imposed by Section 5541, General Code.

'6. Money so expended would be 'expended for * * * costs for construction * * * of public highways and bridges and other statutory highway purposes,' within the meaning of Section 5a of Article XII of the Constitution.

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'9. Section 4 of Article VIII of the Constitution does not prohibit the giving or loaning of the state's credit to or in aid of a public organization created for a public purpose. (State ex rel. Leaverton v. Kerns, Aud., 104 Ohio St. 550, 136 N.E. 217, approved and followed.)

'10. The Ohio turnpike commission is a public organization created for a public purpose.

'11. Within the meaning of Section 1 of Article XIII of the Constitution, a special act, as distinguished from an act of a general nature, is one that is local and temporary in its operation; and the Ohio turnpike act is not a special act.'

In the syllabus in the Allen case, supra [155 Ohio St. 26, 97 N.E.2d 662], a majority of the court held in part as follows:

'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, approved and followed.

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* * * '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.'

It would extend this opinion unnecessarily to repeat the reasoning on which the foregoing conclusions were based. It is sufficient to state that a majority of the court adheres to those pronouncements.

Likewise, a majority of the court is of the opinion that the numerous remaining claims of the respondent are not of sufficient seriousness to affect the validity of the act. Some of them deserve comment.

In the Kauer case, supra, this court sustained the expenditure of funds by the director of the Department of Highways for a study of the feasibility of a turnpike project. In the Allen and MacDonald cases the court approved the payment of funds due to engineers for services rendered in making such study under contracts with the Director of Highways. Now the respondent contends that the Director of Highways was acting as an agent of the relator Turnpike Commission and that the contracts were in fact contracts of the commission and an unauthorized attempt by the commission to expend funds of the state of Ohio because the commission requested such a study. It would seem to be wholly immaterial who may have suggested such a study as long as the Director of Highways acted within his own discretion and statutory authority. Furthermore, under the provisions of Section 1220,...