State v. Smith

• Decision Date: 19 September 1922
• Docket Number: 17697
• Citation: 105 Ohio St. 570,138 N.E. 881
• Parties: The State, Ex Rel. Marcolin Et Al., v. Smith, Secretary Of State.
• Court: Ohio Supreme Court

138 N.E. 881

105 Ohio St. 570

The State, Ex Rel. Marcolin Et Al., v. Smith, Secretary Of State.

No. 17697

Supreme Court of Ohio

September 19, 1922

Constitutional law - Proposed amendments - Secretary of state to submit same to electors, when - Section 1a, Article II, Constitution - Unconstitutionality of proposed legislation as ground for refusal.

Messrs Day, Day & Wilkin, for relators.

Mr John G. Price, attorney general; Mr. E. E. Corn and Mr. David F. Pugh, for defendant.

Mr. W B. Wheeler; Mr. J. A. White; Mr. Charles M. Earhart and Mr G. B. Jarvis, amici curiae.

BY THE COURT. The primary question presented in this case is whether when a petition regular in form, and duly signed by the required number of electors, properly verified, presents a proposed amendment to the constitution of the state, and the same is filed with the secretary of state, that officer may refuse to act pursuant to the clear, mandatory requirement of Section 1a, Article II of the Ohio Constitution ("the secretary of state shall submit," etc.) and refuse to submit for the approval or rejection of the electors such proposed amendment, upon the ground that if adopted by the electors of the state it would contravene some provision of the federal constitution or law enacted thereunder.

This question is not a new one in this state. In the case of Pfeifer v. Graves, Secretary of State, 88 Ohio St. 473, it was hold, all members of the court concurring, that "This court has no authority to pronounce an opinion, a judgment or a decree upon a mere moot question as to whether a proposed law will conflict with the Constitution, if it shall be enacted by the general assembly, or be adopted by the people."

The case of Weinland v. Fulton, Secretary of State, 99 Ohio St. 10, presented precisely the same question as in the case at bar, and the court there unanimously held as follows: "In an action to enjoin the Secretary of State from submitting for the approval or rejection of the electors a constitutional amendment proposed by petition in pursuance of the provisions of Section 1 and Section 1a of Article II of the Constitution of Ohio, a court can not consider or determine whether such proposed amendment is in conflict with the Constitution of the United States. (Pfeifer et al. v. Graves, Secretary of State, 88 Ohio St. 473, approved and followed.)"

In the very recent case, City of Cincinnati v. Hillenbrand et al., Board of Deputy State Supervisors, etc., 103 Ohio St. 286 (decided September 27, 1921), it was again held, every member of the court concurring: "This court has no authority to pronounce a judgment or decree upon the question whether a proposed law or. ordinance will be valid and constitutional if enacted by a legislative body or adopted by the electors. And where the mandatory provisions of the constitution or statute prescribing the necessary preliminary steps to authorize the submis- sion to the electors of an initiative statute or ordinance have been complied with the submission will not be enjoined. (Pfeifer v. Graves, Secretary of State, 88 Ohio St. 473, approved and followed.)"

It has thus become the established law of this state that no officer or tribunal may interfere either with the enactment of laws or the amendment of the constitution while the same is in process, upon the ground that such legislation, if enacted, or constitutional amendment, if adopted, will be in conflict with the constitution, state or federal. These questions are and must necessarily be reserved for consideration and determination after the legislative or constitution making body shall have fully performed its function and such new law or constitutional amendment shall have become effective.

The demurrer is overruled and writ allowed.

Writ allowed. WANAMAKER, ROBINSON, JONES, MATTHIAS and CLARK, JJ., concur.

MARSHALL, C. J., and HOUGH, J., dissent.

WANAMAKER J., concurring.

The primary and paramount question in this case bared to the bone is this: Can the secretary of state, under the constitution of Ohio, nullify or deny to the people their right of referendum on a proposed law, statutory or constitutional, upon the sole ground that the pro posed law, if it shall receive a majority vote of the people and thus be adopted as a law, will be in conflict with some provision of the federal constitution?

The majority of this court emphatically answer this question with a no. The minority with a yes. I fully agree with the doctrine declared in the per curiam opinion of the majority.

The minority view, as presented by Chief Justice Marshall, suggests a further consideration of reasons for the judgment herein entered. In his bill of complaint against the judgment in this case the chief justice urges the following:

"My protest in this case will be a.ga.inst the application of the authority of former adjudications, because the facts and conditions are essentially different. The three cases referred to are Pfeifer v. Graves, Secy. of State, 88 Ohio St. 473; Weinland v. Fulton, Secy. of State, 99 Ohio St. 10, and City of Cincinnati v. Hillenbrand, 103 Ohio St. 286."

The burden being on the minority to demonstrate that the majority are wrong, we now have the issue squarely made. Are "the facts and conditions" of above three cases "essentially different" from the case at bar?

The dissenting opinion frankly admits that the Pfeifer case, supra, was rightly decided. It holds that the Weinland and Hillenbrand cases were merely decided upon the authority of the Pfeifer case. In substance, this may be conceded, with the modification that the Weinland case is an extension of the principle from a statute of the state, involved in the Pfeifer case, to a provision of the state constitution; that is, it applies the same doctrine to all state laws, whether those laws be statutory or constitutional.

The chief justice further says: "We should therefore look primarily to the Pfeifer case to ascertain what was decided, and the reasons therefor."

I cheerfully accept this issue. In the Pfeifer case, on page 475, the following appears: "The petition alleges that the proposed law * * * if adopted by the electors of the state * * * would be in conflict with the Fourteenth Amendment of the Constitution of the United States, and with Sections 1, 2, 14 and 19 of the Bill of Rights and Section 26, Article II of the Constitution of Ohio; that the submission of the proposed law at the election to be held November 4, 1913, will involve the useless expenditure of public moneys of the state, and that the plaintiffs are without adequate remedy at law and will be irreparably injured unless the court gives them relief."

The conclusion of the court relating to this case is in the last paragraph of the syllabus: "5. This court has no authority to pronounce an opinion, a judgment or a decree upon a mere moot question as to whether a proposed law will conflict with the constitution, if it shall be enacted by the general assembly, or be adopted by the people."

Now as to the "reasons therefor," mentioned in the dissent, I submit not merely three lines, as is done in the dissenting opinion, but all that Judge Wilkin says Upon that question. From page 487 the following is submitted:

"There is another indisputable and imperative reason why the remedy they invoke must be denied. We cannot intervene in the process of legislation and enjoin the proceedings of the legislative department of the state. That department is free to act upon its own judgment of its constitutional powers. We have not even advisory jurisdiction to render opinions upon mooted questions about constitutional limitations of the legislative function, and we will not presume to control the exercise of that function of government by the general assembly, much loss by the people, in whom all the power abides. The legislature, having delegated authority, prescribed and limited by the constitution, may exceed its authority by promulgating a law in conflict with the constitution. In a clear case of the latter sort, where the void law is about to be enforced against a citizen to his prejudice, we may enjoin execution of the law, for the protection of the rights of person or property guaranteed by the constitution. This is not such a case; no private rights of person or property are in jeopardy, and there is no law or assemblance thereof complained of. We are simply asked to regulate the affairs of another branch of government, in deference to the general welfare, in a matter quite outside and independent of our authority. We are asked to prevent the people from exercising the initiative, upon a quizzical interpretation of a single word in their own letter of authority to their secretary of state. We can not enjoin the sovereign state of Ohio where the people have not in their constitution, clearly beyond reasOnable doubt, limited the exercise of their power to legislate directly by the initiative."

Note the several pertinent propositions of law used in the Pfeifer case:

(1) "That department [the legislative] is free to act upon its own judgment of its constitutional powers."

(2)" We will not presume to control the exercise of that function of government by the general assembly, much less by the people, in whom all the power abides."

(3) "In a clear case * * * where the void law is a.bout to be enforced against a citizen to his prejudice, we may enjoin execution of the law, for the protection of the rights of person or property guaranteed by the constitution. This is not such a case; no private rights of person or property are in jeopardy, and there is no law or semblance thereof complained of. * * * We are asked to prevent the people from exercising the initiative, upon a quizzical interpretation of a single word...