State, Ex Rel. v. Braden
| Decision Date | 03 May 1932 |
| Docket Number | 23512 |
| Citation | 181 N.E. 138,125 Ohio St. 307 |
| Parties | The State, Ex Rel. Ach, Et Al. v. Braden Et Al. |
| Court | Ohio Supreme Court |
Constitutional law - Special sessions of General Assembly - Section 5 Article III, Constitution - Statement of purpose by governor's proclamation and limiting legislation mandatory - Poor Relief Act constitutional.
1. The provisions of Section S, Article III of the Ohio Constitution, requiring the governor when he convenes the General Assembly on extraordinary occasions, to state in the proclamation "the purpose for which such special session is called, and no other business shall be transacted at such special session except that named in the proclamation," etc., are mandatory; and the general assembly is not empowered to legislate upon any subject except such as may be indicated in the proclamation or which is germane or incidental to the general purpose stated therein; and in his proclamation, the governor can limit the business which the legislature may consider. The act passed in the instant case discloses that the general assembly complied with the proclamation, kept within its purposes, and transacted no other business except that limited in the proclamation.
2. The poor relief act passed by the General Assembly March 31 1932, and approved April 5, 1932 (commonly known as "Amended Senate Bill No. 4 of the Special Session of the 59th General Assembly"), contravenes none of the provisions of the Ohio Constitution.
IN MANDAMUS.
This is an original action in mandamus instituted in this court on the relation of the Hamilton county commissioners against the members of the tax commission of Ohio, wherein the relators seek a writ compelling the tax commission to proceed under an act adopted by an extraordinary session of the General Assembly, which became effective April 5, 1932. The prayer of the petition asks a compliance on the part of the tax commission with said act, and asks that if they find no other means exist for providing poor relief funds, they should then be required to estimate the probable amount necessary to be allocated to Hamilton county under the provisions of Section 5 of the act, and to calculate the total amount of bonds to be issued thereunder.
The petition alleges that on or about April 5, 1932, the relators adopted a resolution declaring it to be necessary to issue one million dollars of bonds for the relief fund in Hamilton county, that such resolution was certified to the state relief commission under the act, and that the relief commission found that such sum was necessary for poor relief in said county. It alleges that a copy of the resolution of the county commissioners, together with a copy of the finding of the relief commission, was then certified to the respondents, the state tax commission, for determination and estimate of the amount that should be allocated to Hamilton county under the provisions of the act. The act in controversy is known as "Amended Senate Bill No. 4 of the Special Session of the 89th General Assembly." The petition avers that the state tax commission refuses to perform the duties required of it although such duties are specifically enjoined upon it by the act.
The answer filed by the respondents, the tax commissioner, contains defenses tantamount to conclusions of law and challenges various provisions of the act because of their alleged constitutional invalidity. The reasons assigned for such invalidity are as follows: (1) That the act is void for the reason that, while the Governor's proclamation for the extraordinary session was called for certain purposes set forth in the proclamation, the act adopted by the General Assembly did not in fact comply with those purposes; (2) that even if it be conceded that the purposes of the act did comply with the purposes set forth in the proclamation, the act contravened the Constitution of Ohio in attempting to make an appropriation for a longer term than two years, and for a longer period than the life of the Eighty-Ninth General Assembly; (3) that the act is invalid in that it authorizes the state to contract debts in excess of $750,000; (4) that it is void in that it purports to authorize the state to assume the debts of a county, or political subdivision of the state; (5) that it is also void because it makes no provision for a sinking fund for the redemption of bonds, and no provision for the levy of taxes by a county or political subdivision of the state in order to pay such bonds and the accruing interest; (6) that the act is void for the reason that the bill contained more than one subject.
The sufficiency of the answer is challenged by general demurrer filed by the relators, and it is upon that demurrer that this cause was argued and presented to this court.
History of the Legislation-On March 19, 1932, the Governor of Ohio issued his proclamation convening the Eighty-Ninth General Assembly in extraordinary session on March 29, 1932, to consider legislation for the accomplishment of certain purposes, one specifically authorizing and empowering the counties of the state to issue bonds for relief purposes during a limited period and to a limited amount; another increasing excise taxes on public utilities, and providing that the funds raised from that source should be applied to the retirement of such bonds as might be issued by the counties for the purpose of affording relief; another providing that a portion of the revenues from gasoline and motor vehicle tax, now allocated to counties, municipalities and townships, might be used for relief purposes for a limited period, and another providing for the creation of a state relief commission with power of administering such relief laws as might be enacted. Pursuant to that proclamation the General Assembly met and passed the act now under at tack.
Only some of the salient features of the act need be referred to in the disposition of this case. The General Assembly did create a state relief commission in compliance with the proclamation. At the same session it provided that "funds raised under this act by the issue of bonds shall be used for poor relief" (Section 2); that whenever in the year 1932 the county commissioners of a county should adopt a resolution findIng that it was necessary to issue bonds for poor relief within the county, and on submission of such resolution to the state relief commission that commission should find that funds are necessary for the relief in a sum fixed by it, and on submission to the state tax commission that commission should find that no further means exist to provide such funds except by the issuing of bonds, the county commissioners of such county might borrow money to provide for poor relief within the county and evidence the indebtedness by the issuance of negotiable bonds or notes in the amount approved by the state relief commission and the state tax commission. The act provided that upon submission of the resolution to the tax commission, that commission shall estimate the amount which will probably be allocated to such county under the provisions of Section 5 of the act, and shall calculate the total amount of bonds, principal and interest on which can be paid out of the allocation, and that it should not approve an issue of bonds by any county in excess of the total amount so calculated. It also provided that the issuance, sale and character of the bonds or notes should conform to Article XII, Section 11, of the Constitution, and to the provisIons of the uniform bond act governing the issuance and sale of bonds without a vote of the people. The act further provides that, for the purpose of providing funds for poor relief, excise taxes should be levied at a certain amount on the gross receipts of public utilities and a lesser amount upon the capital stock or property of sleeping car, freight line and equipment companies, and that the funds so collected should be allocated to the counties of the state upon averages based upon population, tax duplicate and valuations of utility property. The state auditor is required annually each year to draw a warrant for the amounts standing to the credit of the county and to forward the same to the county auditor, and the moneys must be held in trust in a special fund of the county and applied solely to the payment of the principal and interest on the bonds issued under the act, or if they should exceed the amount required for such purpose, such excess must be applied to other poor relief purposes within the county; or, if the moneys should exceed the amount required for poor relief purposes the same should be paid into the sinking fund and used for the retirement of the county bonds. While the act contains various other provisions, the foregoing are all that are needed for the determination of the constitutional questions involved.
Mr. Robert N. Gorman, prosecuting attorney, and Mr. Wm. K. Divers, for relators.
Mr. Gilbert Bettman, attorney general, Mr. L. F. Laylin and Mr. Ferry L. Graham, for respondents.
"Salus populi suprema lex est!" This is one of the ancient maxims of the law, that the welfare of the people is the paramount law. It is the pole- star of police power legislation. Seldom, as in this case, have the three branches of our government participated in effectuating legislation. The Governor proclaims its necessity; the Legislature proceeds to enact it; and the court is called upon to pass upon its constitutional validity. Acting within its scope, and in the exercise of its police powers, this poor relief act was passed by the General Assembly with the intent of promoting the common welfare Its purpose is the alleviation of human suffering and the prevention of want by aiding the poor in their distress. And so like the Good Samaritan...
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