
    Grandle, Appellant, v. Rhodes, Aud., Appellee.
    (No. 35003
    Decided March 6, 1957.)
    
      Mr. John A. Lloyd, Jr., and Mr. James 0. Andrews, Jr., for appellant.
    
      Mr. C. William O’Neill, Mr. William Saxbe, attorneys general, and Mr. Hugh A. Sherer, for appellee.
   Per Curiam.

When this case was first considered and decided, ante, 108, the majority of this court was of the opinion that the use of the contested funds (the “Highway Improvement Fund”) is not for “statutory highway purposes.” This case is thus distinguishable from State, ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St., 268, 91 N. E. (2d), 512, in which this court held that expenditures for the study of a turnpike project were for a statutory highway purpose within the meaning of Section 5a, Article XII of the Constitution.

In the light of this holding, is the constitutionality of See-1 ion 5538.01 et seq., Revised Code, in issue here so as to call for the application of Section 2, Article IV of the Constitution, requiring the concurrence of at least all but one of the judges to declare a law unconstitutional? We think it is not.

As pointed out by the majority of the court in the original report of this case, no claim is made that the General Assembly does not have the right to appropriate funds for either the engineering studies or the construction of a parking garage. The constitutionality of the act itself is not questioned. The sole question arose over the defraying of certain preliminary costs of the construction with funds the use of which is restricted by a section of the Constitution, namely, Section 5a, Article XII. Obviously, the parking garage can be constructed without the use of these funds.

The holding of the majority (a holding with which Taft and Matthias, JJ., disagreed) not being a holding that Section 5538.01 et seq., Revised Code, or any part or parts thereof, or of any statute, are unconstitutional, but rather a holding that, since the use of the funds is not, within the meaning of Section 5a of Article XII of the Constitution, for “statutory highway purposes,” the “Highway Improvement Fund” is not described by the statutory words, “any funds available for the purpose,'’’ the former judgment herein is rescinded, the judgment of the Court of Appeals is reversed and final judgment is rendered for the plaintiff.

Judgment reversed.

Zimmbbmait, Stewart, Bell, Taft and Matthias, JJ., concur.

Weygahdt, C. J., dissents.

HebbeRt, J., not participating.

Taft, J.,

concurring. This rehearing was limited to the question lohether the judgment should be that required by the conclusions of law announced by four judges in the so-called “dissenting” opinion, instead of that required by the conclusions of law announced by three judges in the so-called “per curiam” opinion.

When this court announced its decision in this case [ante, 108), all seven judges apparently believed that the position taken by the majority, as set forth in the last paragraph of what was then described as the “dissenting” opinion, was necessarily dependent upon or required a determination that some essential part of the statutes, relative to construction of a parking lot under the Statehouse grounds, is unconstitutional. Hence, “because fewer than six” concurred in that opinion, all seven judges acquiesced in the last sentence of the “per curiam” opinion and in the entry thereafter of “judgment affirmed.”

Although not then apparently noted by any one, the fallacy of that conclusion is now apparent from a mere reading of the very brief majority but so-called “dissenting” opinion. It is now obvious that the conclusion reached by the majority of the court at that time was not in any way dependent upon, nor did it require, any determination that any law is either unconstitutional or void; and that, therefore, there is no justification whatever for refusing to recognize that the judgment of this court should have been that required by the majority but so-called “dissenting” opinion, which was concurred in by four of the seven members of the court. In the instant case, there is no statute involved that specifically provides for spending any part of the “Highway Improvement Fund” on this underground parking lot project. If there were, then it might be necessary to determine such statute to be unconstitutional or void in order to render a judgment reversing the judgment of the Court of Appeals. Instead, the only statute that is involved in the instant case and that relates to spending money on this project is Section 5538.17, Revised Code, which states that, “with the approval and consent of the commission, the Director of Highways shall expend, out of any funds available for the purpose, such monies as are necessary for the study of any underground parking lot.” Thus, a judgment of reversal may be based upon a conclusion, such as set forth in the so-called “dissenting” opinion concurred in by four judges of this court, that monies in the “Highway Improvement Fund” are not “available for the purpose” because of the provisions of Section 5a of Article XII of the Constitution. Such a judgment of reversal would not be dependent in any way upon any determination that any statute or part thereof is either unconstitutional or void.

Since my opinion still is that an expenditure for studies and surveys for the parking lot under the Statehouse grounds would be an expenditure for the purpose of providing necessary park ing space off the highway and would he an expenditure for “highway purposes” within the meaning of Section 5a of Article XII of the Constitution and that the Court of Appeals was correct in so holding, I have considered the fact that one of the four who concurred in that opinion is no longer a member of this court and that his successor might be persuaded to agree with me rather than with his predecessor. However, 1 am not a partisan in this case but a judge. I have expressed my views as to what decision should be rendered by this court. I believe it would smack of partisanship for me to grasp at technicalities to insist on a further rehearing in the hope that .fudge Hart’s successor on this court might disagree with him and agree with me.

As to the dissenting opinion on this rehearing, I believe it sufficient to state that (1) the conclusion of the majority was not in any way dependent upon holding “unconstitutional and void” any “law” so that the words of Section 2 of Article IV relative to “concurrence of at least all but one of the judges” could not apply (as in this case, a case may involve an interpretation of constitutional provisions without involving any question as to the constitutionality or validity of any statute), and (2) the question being considered on this rehearing could not have arisen in either the Common Pleas Court or the Court of Appeals and would not have arisen even in this court, except for the mistake made by all seven judges of this court when we announced our previous decision, a mistake which I am willing to admit. The very purpose of providing for any application for a rehearing is to correct mistakes by this court which counsel could not have reasonably anticipated before the court’s decision.

Matthias, J., concurs in the foregoing concurring opinion.

WeygaNdt, C. J.,

dissenting. On December 26, 1956, this court announced that it affirmed the judgment of the Court of Appeals.

Now a contrary decision of reversal is announced.

The basis for this change is said to be the discovery of a new theory — one which was not raised, considered or decided previously by the lower courts or raised even in this court until an application for a rehearing was filed.

One of the elementary and cardinal principles of orderly procedure in the judicial review of lower court decisions is that, with the single exception of jurisdiction of the subject matter, a question must be raised below in order to afford the lower courts an opportunity to consider and decide it. There are several sound reasons for this universal rule. One is that in fairness a higher court should not reverse a lower one for something the latter did not do. Another reason for the rule is that the higher court and the litigants are entitled to 'the benefit of the reasoning and judgment of the lower tribunal on the question. A third reason is that an appellant is required to file assignments of error for the purpose of notifying opposing counsel and the reviewing court as to the specific mistakes allegedly made below.

In the instant controversy, counsel and the lower courts are agreed that the sole question raised below was a constitutional one. In his brief in this court, the appellant himself states that “inasmuch as the single question of law involved in this case is that of the meaning of Article XII, Section 5a, of the Ohio Constitution, a clear constitutional question is presented. * * * The basis for plaintiff’s objection to the expenditure of the ‘Highway Improvement Fund’ for studies relative to the proposed underground parking lot is Article XII, Section 5a, of the Ohio Constitution.”

In its opinion the Court of Common Pleas stated that ‘ ‘ this court’s legal question is relatively simple and direct: Would the contemplated expenditure (temporary as it may be) of money from the state’s ‘Highway Improvement Fund’ be illegal as violative of this constitutional limitation on the use of such money?”

And in the opinion of the Court of Appeals, it was said that, “in simple terms, the sole question for determination is whether studies and surveys in the furtherance of the construction of an off-street parking facility in the central part of the city of Columbus constitute proper objectives for which monies, subject to the limitations of Article XII, Section 5a, of the Ohio Constitution, may be expended.”

Yet, in spite of these unambiguous consistent statements, the new majority opinion of this court holds (1) that no constitutional question is involved thereby requiring the concurrence of at least all but one of the judges for a reversal, and (2) that the new question can be raised, considered and decided in this court for the first time, thus reversing the lower courts on a matter they had no opportunity to consider or decide. It would seem that a most dangerous and confusing precedent is being established. In fact it marks a departure from the fundamental rule followed in the first decision of this court in this very case when it was said:

“It is contended also, for the first time in this court, that, if the act authorizing the construction of the underground parking lot (Sections 5538.01 to 5538.21 and 5538.99, Revised Code, 126 Ohio Laws, 12) is a highway measure, it is void because it violates Section 26 of Article II of the Constitution, which provides that ‘all laws, of a general nature, shall have a uniform operation throughout the state.’ Hixon v. Bur son, 54 Ohio St., 470, 43 N. E., 1000. Since this constitutional question was not raised in either the trial court or the Court of Appeals, it will not be considered by this court. Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251; City of Grandview Heights v. Redick, Dir., 165 Ohio St., 326, 135 N. E. (2d), 267.”

Hence, the original judgment of affirmance should be permitted to stand, and this court should not reverse the lower courts on a new nonconstitutional question of mere statutory interpretation which could and should have been raised below and which avoids the sole question those courts were asked to decide.  