
    The State, ex rel. Schorr, v. Kennedy, Secy. of State.
    (No. 26539
    Decided June 16, 1937.)
    
      
      Mr. Percy R. Taylor, Mr. Robert A. Taft, Mr. William Schneider and Mr. Manuel Koslen, for relator.
    
      Mr. Herbert S. Duffy, attorney general, Mr. A. F. O’Neil and Mr. H. G. Kreinberg, for respondent.
   Zimmerman, J.

This controversy involves Sections lc and Id, Article II, of the Ohio Constitution. Section lc is devoted particularly to the referendum, and states in substance that no law passed by the General Assembly shall go into effect until ninety days after it shall have been filed by the Governor in the office of the Secretary of ¡jétate. If within such time a verified petition signed by six per centum of the electors of the state shall have been filed with the Secretary of State ordering that such law or any section or item thereof be submitted to the electors for their approval or rejection, the Secretary of State shall submit such law or any designated part thereof to vote in a prescribed manner.

Section Id reads: “Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the General Assembly, and the reason for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum.”

The important question presented is whether this court will or should invade the legislative field and determine whether the amended act complained of constituted an emergency measure subject to passage as such, with immediate effect.

Under similar constitutional provisions different courts have arrived at different conclusions.

One line of authorities assumes the position that the legislative determination of an emergency is conclusive, made so by the Constitution itself upon compliance with the prescribed procedure, and brooks of no interference by the courts. Another line holds to the view that the legislative determination of an emergency is not conclusive, and it is within the province of the courts finally to determine the same in protection of the popular right of referendum. Many of the cases are collected in 7 A. L. R.,' annotation beginning at page 519, and the case of Hutchens v. Jackson, 37 N. M., 325, 328, 23 P. (2d), 355, 356, cites and discusses a number of the leading authorities pro and con.

This subject is not new in the Supreme Court of Ohio. 37 Ohio Jurisprudence, 812, Section 490. In County of Miami v. City of Dayton (1915), 92 Ohio St., 215, 110 N. E., 726, the eleventh paragraph of the syllabus reads:

“The judgment of the General Assembly as to the emergency character of an act under the constitutional amendment of 1912 is not Conclusive, but its judgment in that behalf may be challenged in a proper proceeding at any time within the ninety day period, either as to the constitutional vote or the emergency character of the act.”

However, the “emergency character” of the act under examination in the above case was not challenged, and paragraph eleven of the syllabus is based upon a few lines of obiter dictum in the opinion, beginning at the bottom of page 221, as follows:

“Manifestly the Legislature’s judgment in that behalf [the emergency character of an act] * * * is not conclusive. The people’s right to a referendum on any act of the Legislature may be asserted in a proper proceeding and at a proper time, notwithstanding the action of the General Assembly of Ohio * *

The question was squarely raised in the case of State, ex rel. Durbin, v. Smith (1921), 102 Ohio St., 591, 133 N. E., 457, and the court was hopelessly at odds. Two judges were of opinion that the legislative determination of an emergency was conclusive. Two reached the conclusion that the court could review and decide the matter and that the particular act under consideration came within the scope of emergency legislation. Three members of the court vigorously contended the matter was not only open to judicial inquiry, but that no semblance of an emergency appeared in the act, and hence the court should so declare and thus allow a referendum thereon.

It is submitted that the Durbin case, covering some eighty-one pages in the state report where it appears, offers a typical example of what may occur when courts occupy themselves in matching their judgment against that of the legislative branch of the government on whether a particular enactment is or is not of an emergency nature.

Again, the identical principle was involved in Holcomb, Aud., v. State, ex rel. Coxey, Sr. (1933), 126 Ohio St., 496, 186 N. E., 99, and the following rule ,of law is laid down in the third paragraph of the syllabus :

' “The duty and responsibility of determining the emergency and the necessity that a measure go into immediate effect are confided to the legislative branch of the government. If the prescribed procedure for enactment thereof is followed, such measure goes into effect immediately upon its passage.”

All six members of the court who participated in the consideration of that case joined in the decision without reservations. While Section Id, Article II, of the Constitution was not directly implicated, .it was specifically referred to, and the case dealt with an almost analogous section of the General Code. Regardless of the subject matter of the Goxey case, the fact remains that what was said in the opinion and carried into the third paragraph of the syllabus is dispositive of the instant controversy, if applied.

This court having so recently taken a definite and united stand on the issue now raised, and such stand being supported by good reasons and respectable authority, a majority of the present members see no sufficient cause for a “turn about face.” Certainly, in a matter like tbe one confronting us, any merit of the individual case affords no adequate ground for the overthrow of an established policy. If the interpretation given to Section Id, Article II, of the Constitution is unsatisfactory, remedy is open for the people of Ohio to speak plainly on the subject by a change in the Constitution.

The existing attitude of the court has been clearly set out in former decisions. Those decisions are available and it would serve no useful purpose to repeat the arguments.

A comprehensive statement supporting the rule that the legislative determination of an emergency is conclusive is made by Gabbert, C. J., in Van Kleeck v. Ramer, Secy. of State, 62 Colo., 4, 11, 156 P., 1108, 1111, wherein he says:

“The argument of counsel for petitioner that the courts are vested with authority to determine whether an act is of the character which excepts it from the referendum, notwithstanding the declarations by the General Assembly that it is, is based upon the assumption that unless the courts exercise the power to determine that question, the people can be deprived of the right to refer a law, if the Legislature, either intentially or through mistake, declares falsely or erroneously that a law is necessary for the immediate preservation of the public peace, health, or safety. The answer to this proposition is that under the Constitution the General Assembly is vested with the exclusive power to determine that question, and its decision can no more be questioned or reviewed than the decisions of this court in a case over which it has jurisdiction. It will not be presumed that the General Assembly will disregard its duty or fail to observe the mandates of the Constitution, or not act honestly. Neither can it be assumed that the courts are better able to determine whether a law is immediately necessary for the preservation of the public peace, health or safety, than the Legislature. Power may be abused, but that is not a valid reason for one co-ordinate branch of the government to assign for limiting the power and authority of another department. The judicial department is as much bound by constitutional provisions as' any other. ‘It cannot run a race of opinions upon points of right reason and expediency with the law-making power. ’ The courts do not make constitutions or change them. They can only construe the provisions of that instrument. So that the only power we can exercise in solving the question presented is to ascertain where the authority to determine when a law is exempt from the referendum, is lodged. * * *
“The only test is, what department of government is authorized, under the Constitution, to determine whether an act is necessary for the purposes specified. This authority, as we have pointed out, is vested in the General Assembly, and if that body erroneously or wrongfully exercises that authority, the remedy is with the people. It is not subject to review by the courts or any other authority, except the people. Under the reserved power of the initiative and referendum, after the declaration by the General Assembly that a law is necessary for the immediate preservation of the public peace, health, or safety, when not referred to the people for their judgment, it still remains with them if they are dissatisfied with it, to cause a measure to be submitted at the next general election for its repeal. If, from experience, it appears necessary to deprive the General Assembly of the power to declare a law necessary for the purposes specified, the people have the power to initiate an amendment to the Constitution which will take from the General Assembly the authority which they have vested in it. But this cannot be accomplished by the courts usurping a power they do not possess.”

A fundamental principle should not be surrendered to meet the exigencies of a passing case. If every member of the court concurring in this decision were of the opinion that the act presently before us is not on its face an emergency measure, that would not alter the situation in the slightest under the rule of our adoption. In other words, since the people in their Constitution have made the General Assembly the exclusive arbiter of whether a proposed act is in truth an emergency measure upon a dual affirmative vote of at least two-thirds of the elected members, no court has the power or authority to interfere with the judgment so exercised. If the General Assembly abuses its prerogative, the people are not lacking for methods of correction.

The contrary rule would permit a court to step from its bench to the legislative halls and arbitrarily or capriciously override the judgment of the department of government to which the enactment of legislation has been expressly confided by the people.

“One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions is thought to be dependent in no small degree on a strict observance of this salutary rule. Each of the three grand divisions of the government must be protected from encroachments by the others, so that its integrity and independence may be preserved. It is incumbent on each officer of the different departments of our government to perform the duties and exercise the authority of his office without in any wise interfering with the power, discretion or authority of the officers in either of the other departments.’.’ 8 Ohio Jurisprudence, 231, Section 128.

The demurrer to the petition is sustained and writ denied.

Writ denied.

Weygandt, C. J., Jones, Matthias and Myers, JJ., concur.

Day and Wihliams, JJ., dissent.

Day, J.,

dissenting. I cannot concur with the view of the majority. The measure is non-emergent and the court has the power to review the reasons assigned for the declaration of an emergency.

The majority opinion states: “The important question presented is whether this court will or should invade the legislative field and determine whether the amended act complained of constituted an emergency measure subject to passage as such, with immediate effect,”

In the writer’s opinion, the question in this case is not whether the judiciary has a right to invade the legislative field, but whether the Legislature has the power, arbitrarily, to invade the reserved rights of the people to referendum.

The authority extended to the General Assembly to enact laws to go into immediate effect is, by the Ohio Constitution, conditioned by the requirement that they be such as are ‘ ‘ necessary for the immediate preservation of the public peace, health or safety. ’ ’

To safeguard against legislative invasion of the popular right to referendum, the Constitution was not satisfied with merely requiring a declaration of emergency, but expressly provided for a statement of reasons. This requirement was unquestionably intended as a check upon the Legislature to prevent the evil of legislative encroachment upon the right of referendum reserved to the people. This check should not be released by the courts.

Where the Constitution requires a statement of reasons for the declaration of an emergency, such requirement, by implication, imposes a limitation upon the power of the Legislature. Where the declaration is not warranted by the reasons assigned, the enactment does not take immediate effect.

Where the Legislature overleaps the bounds of its authority and declares, as it did in the instant case, a non-emergent act emergent, such declaration is not binding upon the courts, but is subject to review.

The opinion of the majority states: “* * * the Durbin case * * * offers a typical example of what may occur when courts occupy themselves in matching their judgment against that of.the legislative branch of the government on whether a particular enactment is or is not of an emergency nature.” Does not this same “matching of judgment” take place every time an enactment of the Legislature is reviewed by the courts? If matching of judgment is a thing to be shunned, then no legislative enactment may be reviewed by the courts.

The opinion of the majority states further that: ‘ ‘ The contrary rule would permit a court to step from its bench to the legislative halls and arbitrarily or capriciously override the judgment of the department of government to which the enactment of legislation has been expressly confided by the people. ’ ’

This situation would not necessarily follow from the acceptance of a theory contrary to that embraced by the majority of this court. Were such the case, then every time the court declares’ an enactment invalid it steps from the bench into the legislative halls and substitutes its judgment for that of the Legislature. The consideration of the question whether the Legislature properly uses or arbitrarily abuses its power is not one for the Legislature but for the courts. To hold that the legislative declaration of an emergency is final and conclusive is to rule that the Legislature is the supreme judge of its own acts; that the Legislature, can leave its legislative halls and step upon the bench to judge the extent of its own authority.

Article II, Section Id, of the Ohio Constitution, provides : “Laws providing for tax levies, * * * and emergency laws necessary for the immediate preservation of the public peace, health and safety, shall go into immediate effect. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the General Assembly, and the reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be a subject to the referendum.” (Italics mine.)

It is important to note the use of the terms “necessary” and “immediate.” Laws, to be emergent, must be “necessary” for the “immediate” preservation of the public peace, health and safety.

The emergency clause in the enactment under consideration reads as follows: “Section 3. This act is hereby declared to be an emergency and necessary for the immediate preservation of the public peace, health and safety.

“The reason for such necessity is that, under the existing law, in case of death of a county commissioner, the appointment is to be made by persons who have no connection with the work of the county commissioners and who, from their training, are not sufficiently qualified to select the successors, and, in the case of the death or resignation of a county commissioner, it would be beneficial to the preservation of the public peace, health and safety for a successor to be appointed by persons familiar with the work of said county commissioners. Therefore, this act shall go into immediate effect.” (Italics mine.)

It will be observed that tbe reasons assigned, on their face, fail to show any necessity for the immediate .preservation of the public peace, health or safety, the statement merely being that “it would be beneficial to the preservation of the public peace, health and safety.” (Italics mine.) No reference is made in the statement of the reasons to any necessity or immediacy, both terms being omitted.

Although the act is described as an emergency, the contents do not conform to the description. A wrong is not a right merely because it is labelled “right.”

The majority opinion further states: “-If every member of the court concurring in this decision were of the opinion that the act presently before us is not on its face an emergency measure, that would not alter the situation in the slightest under the rule of our adoption. ’ ’

This, in effect, means that although the enactment be, in fact, not emergent, the court can do nothing about it. In the writer’s opinion, the court is not impotent and the Legislature is not omnipotent. It is not within the legislative power to abuse authority, even in connection with emergency legislation. Where such abuse is manifest on the fáee of the enactment, it is the clear duty of the court to step in and prevent it. It is within the province of the courts to stay the grasping hand of a usurper of the rights of the people.

The Supreme Court of Missouri, expressing disagreement with the view that the-legislative declaration of emergency is -final and binding upon the courts, said: “To the rule in this line of cases we do not agree. The very substance of a constitutional right could be taken from the people by an over-anxious and hostile legislative body. The right here involved is not only constitutional, but one of vital importance and of large proportions. If tire eoiirts cannot view the whole measure, and from it determine whether or no the law-makers over-stepped the constitutional restrictions, in denying the referendum of the measure by their ukase on the subject of ‘immediate preservation of public peace, health or safety,’ then the constitutional referendums become a farce. It becomes a legislative referendum, rather than a constitutional referendum, because by a mere false declaration as to ‘the peace, health or safety’ every measure could be precluded from the constitutional referendum.” State, ex rel. Westhues, Pros. Atty., v. Sullivan, Secy. of State, 283 Mo., 546, 224 S. W., 327. See also State, ex rel. Pollock, v. Becker, Secy. of State, 289 Mo., 660, 233 S. W., 641, and State, ex rel. Brislawn, v. Meath, 84 Wash., 302, 147 P., 11.

In the writer’s opinion, emergency legislation, to be constitutionally valid as such, must be real and not fancied; it must state facts showing an actual existing or impending menace to the public peace, health or safety, and mere use of a nomenclature is not sufficient.

The court should have held that it has jurisdiction to question the sufficiency of the reasons assigned for declaring an emergency to exist.

Williams, J., concurs in the dissenting opinion.  