
    The State, ex rel. Durbin, v. Smith, Secretary of State.
    
      Constitutional law — Referendum — Section id, Article II, Constitution— Emergency laws — ludicial review of legislative declaration of necessity — Act establishing administrative code (log O. L., 105) —Sufficiency of reasons for declaring measure emergency.
    
    (No. 17062
    — Decided June 16, 1921.)
    In Mandamus.
    On April 19, 1921, the general assembly of Ohio passed an act to establish an administrative code for the state, abolishing certain offices and creating new departments with redistribution among them of existing administrative functions. The act was approved by the governor and later filed in the office of the secretary of state. The law comprises about thirty printed pages, and, in addition to repealing a great many of the theretofore existing statutes, and abolishing certain existing offices, creates some eight administrative departments, upon which, together with the offices created within the several departments, are conferred various functions of the state government. The act provided that it should go into effect immediately. By Section 5 of this act (109 O. L., 105, 133) the general assembly declared it to be an emergency law, necessary for the immediate preservation of the public peace, health and safety. That section further declared that “the reasons for such necessity lie in facts, which two-thirds of all the members elected to each branch of the general assembly have considered, found and determined and which are separately set forth herein * * Thereupon the section recited a large number ■ of facts considered by the general assembly sufficient to create an emergency, among which are the following:
    “According to the annual reports of the auditor of state, the balances subject to draft in the general revenue fund of the state, from which many of the activities of the state government are supported, had shrunk from more than two million dollars on June 30th, 1919, to less than one million dollars on June 30th, 1920, (alb of which, (and more, was covered by unlapsed appropriations for the preceding fiscal year), clearly indicating the immediate necessity either for increasing the revenues of the state, or for effecting such a reorganization of the state administration as would tend to conserve the present revenues.”
    No question has been raised that the act and the emergency section, each, upon a yea and nay vote and upon a separate roll call, did not receive the vote of two-thirds of all the members elected to each branch of the general assembly.
    After the filing of the act with the secretary of state, and within the necessary period of time legally required, the relator, Wm. W. Durbin, as an elector and taxpayer of Hardin county, brought an action in mandamus against the secretary of state, wherein he recited that, desiring to take steps for the purpose of invoking a referendum upon the act, he tendered to the secretary of state a duly verified copy of the act, together with a proper form of referendum petition, and requested the respondent, under favor of Section 5175-29d, General Code, to make* designation of the size of paper and type to be used in printing such petitions, etc.; but that the respondent refused to comply with the request upon the sole ground that the act was not subject to a referendum for the reason that it contained an emergency clause. The relator’s petition further alleged that while Section 5 of said act undertook to declare it to be an emergency law, necessary for the immediate preservation of the public peace, health and safety, and had provided that it should go into immediate effect, the fact was that the purpose, scope and character of the act were such as not to constitute it an emergency act, and that the same had no relation to the immediate preservation of the public peace, health and safety. The relator therefore prayed a writ, asking that the secretary of state be compelled to receive the verified copy of the act and to designate a convenient size for paper and type to be used in printing said referendum petitions.
    The answer of the respondent is somewhat lengthy, containing argument and a large number of legal conclusions, and, while protesting the court’s right to take cognizance or inquire into the declaration of the legislature and the reasons assigned for making it an emergency law, denies the relator’s allegation of fact, if the court should consider such issue to be relevant in law.
    Considering that the allegations of the pleadings are sufficient to raise the legal questions involved, both the relator and the respondent have filed motions asking for judgment upon the pleadings, and it is upon this phase of the case that the judgment of this court is being sought.
    
      Mr. Timothy S. Hogan and Mr. George B. Okey, for relator.
    
      Mr. John G. Price, attorney general; Mr. Ray Martin and Mr. Clarence D. Laylin, for defendant.
   By the Court.

The first question presented in this case is the following: Is the right of referendum reserved by the constitution upon an act which the general assembly has adopted, the general assembly having passed a separate emergency section, wherein the reasons for such necessity have been set forth, by a vote of two-thirds of all the members elected to each branch upon a yea and nay vote upon separate roll call ? No case has previously been presented to this court involving that question.

Section Id, Article II of our Constitution, is as follows: “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 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 subject to the referendum.”

In approaching the consideration of this question this court must be mindful of the cardinal rule long adhered to, that “it is only when manifest assumption of authority and clear incompatibility between the constitution and the law appear, that the judicial power will refuse to execute it.” Cincinnati, Wilmington & Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St., 77.

Mindful of the principles- announced in the above case and others later cited in this opinion, two judges of this court are convinced that an examination of the constitution clearly indicates that the provisions of Section lei of that instrument, in a case of this character, preclude a referendum when the act and the emergency clause have been adopted in the manner stated, by a two-thirds vote in each branch of the general assembly. The Constitutional Convention did not vest the courts with power over questions of legislative policy. There is nothing in the debates or in the proceedings of the Constitutional Convention indicating any purpose or design of the framers of the amendment in question that every act passed as an emergency law should be submitted to the test of judicial scrutiny by proceeding in court, and the reasons assigned by the legislature for the necessity of the law becoming immediately effective be subject to the approval of the courts of the state. Indeed, the attitude and the action of the convention would indicate quite the contrary purpose and design.

Section id, aforesaid, provides that emergency laws shall go into immediate effect, and in order to emphasize that fact the constitutional provision closes with this language: “The laws mentioned in this section [which include emergency laws] shall not be subject to the referendum” The balance of the section merely characterizes an emergency law. Such law, as distinguished from an ordinary law, requires the vote of two-thirds of all the members elected to each branch of the general assembly. In addition, it is required that the reasons for such necessity shall be set forth in one section, and that section shall be passed only upon a yea and nay vote upon a separate roll call. The history of this section, its discussion, the form in which it was adopted and presented to the people of this state for approval when the constitution was adopted, all support the view that the makers of the constitution had confided to the two-thirds of each branch of the general assembly the function of ascertaining and recording reasons which to them appeared to be necessary .to give the law immediate effect. In the constitutional convention were men of all shades of opinion, and the discussion of the initiative and referendum proposition submitted ended in a compromise between the factions. There were those who urged that every act passed by the general assembly should be subject to the referendum. However, it was finally determined that all acts of the general assembly should not be subject to the referendum, and that those excepted therefrom should “go into immediate effect.”

The manner and form in which this particular provision of the constitution was adopted make it clear that the question of preservation of the public peace, health or safety, together with the reasons for the necessity of passing such emergency law, were confided to the legislative discretion with the requirement that such laws should receive a two-thirds vote of all members elected to each branch. This is made clear by the adoption of this provision of the constitution in the following form, as shown on page 943 of the Debates of the Ohio Constitutional Convention, wherein Section Id contained the following language: “Emergency measures necessary for the immediate preservation of the public peace, health and safety, if such emergency measures upon a yea and nay vote shall receive the vote of two-thirds of the members elected to each branch of the general assembly, shall go into immediate effect.” The wording of the provision was later changed by the committee on phraseology, but there was no amendment offered or discussion had which would indicate an intention to alter the construction which the constitution-makers had theretofore placed upon it.

The opponents of this view have trained their heaviest guns upon the phrase, “reasons for such necessity,” found in the provision, which they say dominates the section and controls the positive and emphatic language otherwise provided therein, whereby emergency laws are not made subject to referendum. That the constitution-makers had no such view would seem to appear from, the fact that when this feature was submitted in the official address to the people, signed by Herbert S. Bigelow, as president of the convention, and C. B. Gal-breath, as secretary, it contained the following explanation: “That laws providing for tax levies, appropriations for the current expenses of the state government and institutions and emergency laws' necessary for the immediate preservation of the public peace, health or safety shall go into effect immediately if they receive a two-thirds vote of the members elected to the general assembly.” It does not appear that the reasons, so long as they were satisfactory to two-thirds of all the members elected to each branch, were all-controlling, for the explanation does not refer to them. This explanation clearly provided that emergency laws, etc., “shall go into effect immediately if they receive a two-thirds vote of all the members elected to the general assembly.” It is but fair to assume that such official announcement of the purpose and effect of this amendment was a correct statement thereof and that the people accepted the explanation thus announced and published and that their approval was based thereon.

It would seem, therefore, that these features of the law are justiciable: (a) That emergency laws must receive a two-thirds vote of all the members elected to each branch, (b) Reasons for the necessity shall be set forth in one section of the law. (c) That such emergency section shall be passed upon a yea and nay vote upon a separate roll call.

Manifestly, this court cannot go outside of the provisions of the act and the facts which it judicially knows for the purpose of ascertaining whether the legislature had valid reasons for declaring this to be an emergency law. Primarily this is a legislative and not a judicial policy, and the subject-matter comes naturally within the legislative and not the judicial field. We should hesitate to determine judicially that the lawmakers of the state had violated their oaths by making a false statement in their declaration of emergency.

We are supported in this view by the decision of courts in sister states which have adopted referendum provisions similar to those in Ohio, as will be seen by the following cases: Kadderly v. Portland, 44 Ore., 118; Hanson v. Hodges, 109 Ark., 479; State, ex rel. Lavin, v. Bacon, 14 S. D., 394 (1901); Oklahoma City v. Shields, 22 Okla., 265 (1908); and VanKleeck v. Ramer, Secretary of State, 62 Colo., 4 (1916).

It is true the courts in certain jurisdictions have held otherwise, but we attach great importance to the ' cases cited, especially to that of Kadderly v. Portland, supra, decided in 1903, by the supreme court of Oregon, for the reason that the report of debates of the Ohio Constitutional Convention shows clearly that the Ohio referendum provision was copied from the Oregon Constitution, and the debates of the Ohio convention disclose that the decision of the highest court of Oregon upon the initiative and referendum was fully considered by the Ohio Constitutional Convention, for at that time the supreme court of Oregon in the Kadderly case, supra, had decided this feature of its referendum provision by the following clause of the syllabus: “The question whether a given law is necessary for the immediate preservation of the public peace, health or safety, and thus one that may be put into operation at once by adding to it an emergency clause, is distinctly for the legislature, and its action in the matter is not judicially reviewable.”

This act, upon a yea and nay vote, having received the votes of two-thirds of all the members elected to each branch of the general assembly, the reasons for the immediate necessity for such law having been set forth in one section of the law which was passed upon a yea and nay vote upon a separate roll call, it is held by Judges Jones and Matthias that all the provisions of Section Id of Article II of the Ohio Constitution were thereby complied with, and that under its clear and express terms an act so passed is not “subject to the referendum” and “shall go into immediate effect.” Under the provisions of Section 2, Article IV of the Constitution, providing that “no law shall be held unconstitutional and void by the supreme court without a concurrence of at least all but one of the judges” the conclusion above announced would require a denial of the writ of mandamus prayed for.

However, if it be conceded that the validity of the reasons stated is a justiciable question and that the court may inquire whether such reasons bear a reasonable relation to the public peace, health and safety, Judges Jones and Matthias join Judges Hough and Robinson in the following reasons and conclusion: In the case of Cass v. Dillon, 2 Ohio St., 607, it was held: “The repugnancy which must cause the law to fall, must be necessary and obvious; if by any fair course of reasoning, the law and the constitution can be reconciled, the law must stand.”

In the recent case of City of Xenia v. Schmidt, 101 Ohio St., 437, this court declared: “1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body.

2. That presumption of validity of such legislative enactment cannot be overcome unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the constitution.” In the opinion by Wanamaker, J., at page 443, the opinion of John Marshall, C. J., in the case of Fletcher v. Peck, 6 Cranch, 87, decided in 1810, is quoted with approval as follows: “The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the. constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

And in City of Xenia v. Schmidt, at page 444, Judge Wanamaker again quotes from the opinion of Justice Washington in the case of Ogden v. Saunders, 12 Wheat., 213 (1827), as follows: “If I could rest my opinion in favor of the constitutionality of the law * * * on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond a reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.”

Quoting again from the opinion of Chief Justice Waite in Sinking-Fund Cases, 99 U. S., 700 (1878): “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions; depends in no small degree on a strict observance of this salutary rule.”

Also quoting from the opinion of Chief Justice Shaw in the case of Wellington et al., Petitioners, 16 Pick., 87: “To repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation * * * [they will] never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.”

Quoting again from the opinion of Justice Ranney in the case of Cincinnati, Wilmington & Zanesville Rd. Co. v. Clinton County Commissioners, 1 Ohio St., 77, the learned Judge in the Xenia case, at page 445, approved this language: “But while the right and duty of interference in a proper case, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority * .* * and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case. And this results from the very nature of the question involved in the inquiry. * * *

“The adjudicated cases speak a uniform language upon this subject. * * *

“An unbroken chain of decisions to the same effect, is to be found in the State Courts.”

This same principle was approved and applied in the recent case of Pohl v. State, ante, 474, in which all members of this court concurred. It is there stated that “If under any possible state of facts the sections [of the law] would be constitutional, this court is bound to presume that such facts exist.” v

The Constitution of 1912 recognized the power reposed in the judiciary of declaring laws to be unconstitutional and void. And in order to maintain legislative supremacy, and to curb the judicial power, this provision (Section 2, Article IV) was adopted as a part of the Judicial Article:

“No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges.”

Adhering to the principle adopted and so fre-. quently applied, not only by our own court but by substantially every court in the country, it follows that where the legislative authority has once acted for reasons obvious or satisfactory to itself, the judicial department is not permitted to review the wisdom of legislative policies or to review legislative discretion. The court may intervene only when it is convinced that the legislative act is incompatible with the provisions of the constitution. The' majority of this court are of opinion that such is not the case here.

Having in mind the principles enunciated by Chief Justice John Marshall, Justice Washington, Chief Justice Waite and Chief Justice Shaw, quoted above, and remembering the admonition of Ranney, C. J., in Hill v. Higdon, 5 Ohio St., 243, that “We can not overturn in doubt, what they [the general assembly] have established in settled conviction,” and resolving every rational presumption in favor of the constitutionality of the provision and of the existence of the conditions and state of facts found by the legislature to exist, we are unable to say that the public peace and safety will not be preserved by the legislation in question and that there is no necessity for the law going into immediate operation.

Section 5 recites: “According to the annual reports of the auditor of state, the balances subject to draft in the general revenue fund of the state, from which many of our activities of the state government are supported, had shrunk from more than two million dollars on June 30th, 1919, to' less than one million dollars on June 30th, 1920, (all of which, and more, was covered by unlapsed appropriations for the preceding fiscal year), clearly indicating the immediate necessity either for increasing the revenues of the state, or for effecting such a reorganization of the state administration as would tend to conserve the present revenues. General economic conditions make increased taxes highly undesirable at the present time. * * *

“As a result of all the foregoing, the state service in the appointive state departments, shown by said investigations to be wasteful and inefficient, is becoming increasingly demoralized. * * * The necessity of placing their functions upon a sound, economical, permanent and secure basis is great and immediate.”

The reasons assigned show a fiscal condition in our state which demands immediate relief. These impute the bankruptcy of the state if the present condition of affairs is allowed to exist. A shrinking of more than one million dollars in a single year in the general revenue fund of the state would seem to demand some immediate remedy for the peace and safety of the state; for a bankrupt state, or a grossly overtaxed state, is on the threshold of dissolution and becomes a fertile field for communism, bolshevism and anarchy. We have but to look to our neighbors to the south or across the seas for a verification of this assertion. If this act results, as the legislature declares it will, in saving to the state its diminishing revenues, without further taxation, such an end would be not only a consummation devoutly to be wished, but would tend toward the preservation of the public peace and safety, and would be such an emergency law as was contemplated by the members of the constitutional convention in the enactment of Section Id of Article II.

Indulging the presumption in favor of the legislation, and in the absence of positive, judicial knowledge to the contrary, this court is bound to accept as true the reasons assigned by the legislature for making the act in question an emergency law.

It follows that the motion of the respondent for a judgment upon the pleadings should be sustained, the writ denied, and the petition of the relator dismissed.

Writ denied.

Hough, Robinson, Jones and Matthias, JJ., concur.

Marshall, C. J.,

dissenting. I conceive it to be the most laudable purpose of a dissenting opinion to record a protest against declarations of principles which are unsound, and to prevent such declarations from becoming firmly established precedents; to serve notice upon all present and future members of the court that a wrong has been committed and should and must be righted at the earliest opportunity. It is in this frame of mind that I enter upon the discharge of an unpleasant duty. The dominant portion of the court has robbed the sacred constitution of our state and taken from it one of its- vital and essential elements — the referendum.

It is the true province of the courts to decide causes, not to nullify laws and constitutions. The majority opinion has with elaborate citation of authority shown that the judicial branch of our government has always upheld and sustained the work of the legislative branch, unless -clearly beyond the power delegated to it by the people, and has employed this course as the sole grounds of upholding this piece of political legislation. In its zeal to uphold the work of the representatives of the people in a ripper bill it has nullified a vital portion of the. work of the people themselves. The cardinal principle of upholding legislative enactments, unless clearly in' excess of the power conferred upon the legislature by the constitution, has its source in the division of the powers of government into three branches and the deference to be properly shown by each of those branches to the others. Such deference is due from this court to the legislative branch, and this court would be exceeding its constitutional power if it lightly nullified an act of the legislative branch. The difficulty with the majority opinion, however, is that it has entirely overlooked the dual constituency of the legislative branch, and in an excess of zeal to uphold the action of one wing of the legislative branch, to-wit, the general assembly, it has ruthlessly trampled under foot and destroyed the reserved legislative power of the other wing, to-wit, the people.

On every page of the majority opinion may be found abundant evidences of a struggle. The four do not agree upon the methods to be employed and are only able to agree upon a question which is not involved. Two of the four deliberately turn their backs upon principles heretofore established not only with their concurrence and approval but also by means of their emphatic support. A new meaning has been given to words, contrary to well-settled adjudications. A strained construction has been placed upon language entirely free from ambiguities.

More than half the entire opinion is devoted to the discussion of the proposition that only a political question is involved, in which proposition only Judges Jones and Matthias concur. In the remainder of the opinion Judges Robinson and Hough concur in the proposition that the issue is a justiciable one, but that it pertains solely to the constitutionality of the emergency clause.

The emergency clause, though required by the constitution to be made a separate section of the bill itself, is no part of its operative provisions. It is merely intended as a statement of reasons to justify the legislature in making the provisions of the law immediately operative, thereby forestalling a referendum. It contains none of the elements of a law; it is not in any sense a rule of action or human conduct; it contains no order commanding what is right or prohibiting what is wrong.

The formal requirements of the constitution have been met when the separate section declaring the “reasons” has been added to the bill, and a separate roll call taken, receiving a two-thirds vote of all the members of each house. If the executive branch of the government should attempt to execute the provisions of a law immediately after its passage, without such law having a separate section declaring the “reasons,” and without the required vote on a separate roll call, such attempted execution could be enjoined and a constitutional question would be presented, because it would involve a question of legislative power and not a question of legislative policy.

When, however, the action of the legislature is formal and regular, but the “reasons” are wholly deficient in substance, or irrelevant to the provisions of the bill, or unfounded in fact, or where the emergency is fanciful only, the question is a judicial one.

Let us illustrate. Our constitution provides that where private property is taken for public use, compensation shall first be made, the same to be assessed by a jury, without deduction for benefits. This court has recently .ruled that where a jury is in fact impaneled to assess the damages, no constitutional question is presented, even though error may have intervened in the conduct of the trial. The error would be reviewable as a judicial question. By parity of reasoning the error of judgment of the legislature is reviewable as a justiciable question, but no question of constitutional power is involved.

The constitutionality of the Administrative Code is not an issue in this controversy. This question may arise and have to be determined in some future action, but the issue has not been made in this action, either in the pleadings or in the briefs and arguments of counsel. For the purpose of this controversy it may be admitted that the act is constitutional. The majority opinion has laboriously raised a man of straw and then pretended to knock him over. The structure was laborious because it was accomplished without materials of any kind, but the act of knocking him over was easy because he never had any foundation to rest upon'.

The legislature has constitutional power to codify the administrative laws of the state, and in so doing may create new offices and change the titles of those already existing. It may define the duties of new officers and enlarge or diminish the powers and duties of those already existing.

All these things have been done, and nothing more has been done.

No question of the constitutionality of a law is presented to this court for determination, because it is not claimed that any part of this law transcends the legislative power conferred by the constitution.

Under and by virtue of the former constitutions we had only one lawmaking body in Ohio — the legislature. Under the amendments of 1912 we still have the legislature, with restricted powers, and, in addition thereto, another legislative body is recognized — the people. The direct legislative power of the people is exercised by means of the initiative, and the restrictions upon the powers of the legislature are exercised by means of the referendum.

There being therefore two distinct, concurrent legislative bodies, having power to deal with the same subject at the same time, and the people having at the same time the right by referendum to review and possibly nullify the action of the legislature, it is quite natural that a conflict should occasionally arise between the two legislative bodies, and this is exactly what has occurred-in the present instance. Both legislative bodies are limited to the powers conferred and are subject to all limitations contained in both the federal and state constitutions, and if either body in the attempted performance of its legislative functions transcends those powers and limitations its acts are subject to review at the hands of this court, in a case in which the issue is properly raised; but such review does not involve the question of the constitutional validity of such legislative acts.

It is equally 'within the province of this court to judicially determine the issues arising between the two legislative bodies when either seeks to exercise its powers without due regard to the rights of the other, or, when, as in this .case, the legislature proceeds in a manner which if unchallenged would prevent a review of its action at the hands of the people.

The legislature has passed the bill and the constitutionality of its provisions is not challenged. The legislature has from the standpoint of parliamentary law complied with the requisites of a two-thirds majority on the bill itself and a like majority on separate roll call on the emergency declaration, and has also stated certain reasons for the necessity, all of which make a prima facie case. The relators challenge the validity of the “reasons for the necessity” stated in Section 5, alleging that they do not relate in any ■degree whatever to “the immediate preservation of the public peace, health or safety.”' The question is, therefore, does this challenge the constitutionality of the law itself, that is to say, raise the question -whether the legislature has kept within the bounds of the legislative authority conferred by the constitution in the governmental provisions of the bill, or, on the other hand, does it merely present a legal controversy between the two lawmaking bodies, quite independent of constitutional powers and limitations ? Surely it is the latter situation which confronts us.

Being in the minority, and having therefore the negative position in the controversy, it would seem that we should examine the majority opinion and attempt to answer the arguments adduced in support -of the claim that it is a constitutional question. An examination of the majority opinion discloses the startling fact that it does not contain a syllable of argument that it is a -constitutional question. After admitting that only Judges Jones and Matthias are willing to take the position that the legislative fiat upon “the reasons for the necessity” is conclusive, and further admitting that five of the seven members of this court believe that a justiciable and not a political question is involved, the majority opinion devotes the larger space to the proposition that a statute should not be declared unconstitutional unless its invalidity is clear beyond a reasonable doubt. No judge or lawyer has any quarrel with such a rule when it is really applied to such a problem. The instant case does not present such a problem. We are here concerned with a controversy between the general assembly and the people; and the effect of the majority opinion, and the effect of the application of the rule of certainty and clarity beyond a reasonable doubt, is to require the people to demonstrate beyond a reasonable doubt that they have reserved the right of referendum on this bill. It would seem more logical, inasmuch as the general assembly under former constitutions had the sole lawmaking power and in 1912 the people took away a portion of that power and made certain reservations in the power left remaining in the general assembly, that the constitutional provisions creating such reserved power should be construed most favorably to the people.

This is the view expressed in the case of State, ex rel. Brislawn, v. Meath, 84 Wash., 302.

The power of review reserved to the people was general, and the exceptions were limited only to tax levies, appropriation bills for current expenses and emergency measures. Having undoubted power to provide for review of all legislation, and having clearly manifested and expressed its determination to make some reservation of legislative power, it is unthinkable that the constitutional convention intended to put a weapon in the hands of the legislature to destroy the right of review by the simple expedient of declaring an' emergency where no emergency in fact existed.

This proposition was discussed in the case of State, ex rel. Goodman, v. Stewart, 57 Mont., 144, and from page 171 of the opinion we quote:

“In this state’ it is the fundamental law that the people may themselves propose legislation, and may refer all Acts passed by the legislative body, suspending the operation of those Acts until the people have had the opportunity to either accept or reject them at the polls, except as to those Acts enumerated in the constitutional amendment; and, as to the particular exception here under consideration, it is clear that the people did not intend that the exception should, extend further than to those matters arising out of some unforeseen menace, public calamity, accident, sudden emergency, extraordinary occurrence or unprecedented climatic conditions, rendering immediate action imperative to prevent serious or irreparable injury to the public. It was certainly not the intention of the people, having determined to depart from the policy of, vesting all legislative power in a representative body, and to reserve to themselves the right to pass upon all Acts of the legislature, except as to those necessary for the immediate preservation of the public peace, public health, or public safety, to then place in the hands of the legislature a weapon to defeat and destroy that power so reserved and to nullify the constitutional reservation thereof.”

It may be conceded that courts should not declare any law unconstitutional unless there has been a clear assumption- of power, but on the other hand there is an imperative duty to interfere when such assumption is clear.

This was the unmistakable pronouncement of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, and is a doctrine which has been recognized by every court which has exercised such jurisdiction, which of course includes Justices Waite, Washington, Shaw, Ranney, and others whose names and renown have been employed to support the views of the majority opinion.

Even though the question before the court were the determination of the constitutionality of the law, it would afford no justification for giving a strained or unwarranted interpretation to the constitutional provision. In the opinion of the two members reference is made to the proceedings of the constitutional convention, and to the rearrangement of Section Id, Article II, made by the committee on phraseology, and to the text of the address to the people. All this is doubtless on the theory that the language of this section does not express the true intent of the convention. A careful examination of all the proceedings of the convention discloses that there is no foundation for this theory. Section Id was rearranged after its first submission to the convention, but nearly all discussion of the initiative and referendum occurred after the revision, and the entire proposal was later submitted to a special committee of seven members, every one of whom was a well-known progressive and friend of the proposal. While the entire proposal received the most elaborate discussion there was not at any time any discussion of Section Id on the floor of the convention. The emergency clause was worked out solely in the committees and was at all times, in the hands of its friends. The final draft was not in any sense a compromise, as alleged by the two members of the majority, but, on the contrary, the language finally employed was the result of deliberation in the committee room. The progressive spirit was paramount in the convention of 1912, and yet there was at no time the manifestation of any tendency to overthrow representative government. On the other hand there was an overwhelming majority of the delegates who were striving to secure a more adequate representation of the people, a more adequate expression of the people upon great public questions. The convention was in no sense revolutionary, but in the fullest sense evolutionary. Its deliberations resulted in the adoption of the initiative and referendum, not as substitutes for representative government, but with the design of making the government more truly representative. With the wisdom or unwisdom of the work of the convention, and the judgment of the people at the election which followed, whereby the present text of Section Id was ratified by a large majority, we ha!ve nothing to do. Regardless of whether or not the language of Section Id was changed in an unauthorized manner by the committee on phraseology, it is a rule of universal application, repeatedly declared by this court, that if there is no ambiguity or uncertainty in the meaning of the language employed there is no place for judicial construction. (Slingluff v. Weaver, 66 Ohio St., 621, and eleven later cases.) Surely it cannot be claimed that any language found in Section Id is of doubtful meaning or import.

The majority of this court are of the opinion that the legislature may declare any law to be an emergency measure provided two-thirds of the members elected to each house concur in the validity of the reasons for the necessity, and that such declarations are final unless this court has judicial knowledge of their falsity. This position is wholly untenable. The requirement of a two-thirds vote is purely a parliamentary one and its fulfillment cannot make that true which can be proven to be false, neither will a self-evident fact, wholly impertinent to the main provisions of the law, constitute a compliance.

To illustrate let us suppose the legislature had declared in Section 5 that the reasons for the necessity lie in the fact that the summers are hot and the winters are cold. The court will take judicial notice of these facts, but no one would contend that the constitutional requirements are thereby met.

The language of Section Id is plain and unequivocal; there must be an emergency, and there must be a separate statement of facts constituting reasons which prove its existence. This requirement is not met by a fallacy or fiction; sophistry may not be substituted for reason; fact may not be supplanted by pure invention; the emergency must be real and not imaginative. It must be an emergency according to the accepted meaning, as defined by lexicographers; according to the meaning stated by this court in the case of State, ex rel. Menning, v. Zangerle, 95 Ohio St., 1.

Much has been said by other dissenting judges about that case, which need not be repeated here; but it may properly be added that regardless of what argument may be made against the value of established precedent, and regardless of what may be said about judges and courts not being bound to follow other judges and courts, the bench, bar and litigants of the state of Ohio surely have the right to expect that upon such a radical change of position upon such important principles the court should at least announce some reason for the change.

In the Zangerle case the court had under -consideration Section 5649-4, General Code, and the emergency therein referred to pertained to tax levies for improvement of roads which had become out of repair.

That which was an emergency in 1916 is an emergency in 1921. If there is any difference or distinction between the emergency referred to in Section 5649-4, General Code, and the emergency of Section Id, Article II, the difference is altogether unfavorable to the majority opinion in the instant case, because in the instant case the emergency is limited to those things necessary to the immediate preservation of the public peace, health or safety. That is to say there must not only be a threatened danger to the public peace, health or safety, but the provisions of the act must be such as are necessary to immediately avert the threatened danger.

That is to say, before the writ of mandamus can be refused in this case, it must not only be determined that an emergency exists, and that it is necessary to immediately take steps to avert a threatened danger, but it must also fairly appear that the main provisions of the act itself are designed to produce the “consummation devoutly to be wished.”

The majority opinion is grounded upon the theory that the state is in a deplorable financial condition, trending toward bankruptcy, and voices the immediate necessity either for increasing the revenues of the state or conserving the present revenues.

The act, however, does not pretend to do either of these things. Its purpose is properly expressed in its title, as follows: “To establish an administrative code for the state, to abolish certain offices, to create new administrative departments and redistribute among them existing administrative functions.” Its provisions are in full harmony with'its title.

The act creates no new administrative functions. It merely redistributes existing administrative functions among some officers now existing, and who will continue to exist, and-others created and established by the act. It is still the same government of the state of Ohio, with the same institutions, the same purposes to be served, and the same governmental agencies, to be known hereafter by other names. The form of the government is changed, but the substance remains; being neither enlarg-ed nor diminished.

As an illustration of the foregoing statements it is well to refer to the provisions of the bill itself, and it will be found that the simplest and plainest illustration is in the provisions relating to the department of agriculture. In Section 154-26 (109 O. L., Ill), it will be found that the following offices heretofore existing in the department of agriculture have been abolished: the board of agriculture of Ohio, the secretary of agriculture, the head of the bureau of markets and marketing, the chief of the bureau of horticulture, the inspector of canneries, the board of control of the Ohio agricultural experiment station and the agricultural advisory board. It must not be inferred, however, from the abolition of these offices that the functions heretofore performed by their officers will be no longer performed. Neither must it be inferred that the expense of the salaries of those officers and of their hundreds of assistants will hereafter be saved. On the contrary it will be found that in the act itself, Section 2250, General Code (109 O. L., 128), has been amended and practically the same offices are provided for under different titles, with substantial increases of salary. The “Administration Code” provides for a “Department of Agriculture,” but it must not be assumed from this fact that no such department existed before. The fact is that beginning with Section 1079 of the General Code, and continuing through one hundred and seventy-nine other sections following that number, full provision was made many years ago for a department of agriculture, and in order that there may be no doubt left in the minds of the readers of this opinion that the same governmental functions will be hereafter performed as have been heretofore performed I will quote from the Administrative Code (109 O. L., 120) the entire portion pertaining to the “Department of Agriculture,” as follows:

“Sec. 154-42. The department of agriculture shall have all powers and perform all duties vested by law in the board of agriculture, the secretary of agriculture, the agricultural advisory board, the chief of the division of fish and game under the board of agriculture, and all -officers and employes in such division, and in all other bureaus and offices established or authorized by law under the board of agriculture or the secretary of agriculture. Wherever powers are conferred or duties imposed by law upon such board of agriculture or secretary of agriculture, or upon bureaus or offices under either of them, such powers and duties shall be, excepting as herein provided, construed as vested in and imposed upon the department of agriculture.”

The foregoing section not only illustrates but conclusively proves that so far as the department of agriculture is concerned there will be no change either in the form or the substance of the government of that department. It will merely amount to a change in the titles of the officials who will perform the duties under increased salaries. Heretofore the head of the department was called a secretary. Hereafter he will be called a director. In one instance, the “Head of the Bureau” will be called “Chief of the Division,”

It is possible, and indeed it is fondly hoped, that under the new titles the officials will render efficient service and give the taxpayers of the state an economical administration of their departments, but if so it will not be because of the change of title but rather because of a change of personnel. The words of Alexander Pope in his immortal Essay on Man are pertinent:

“For forms of government let fools contest;
That which is best administered is best.”

The act has nothing whatever to do with raising revenue or conserving the present revenues of the state. A careful reading of the entire act shows that nowhere except in the emergency clause is any reference made to revenues or wasteful or inefficient administration. Economy and efficiency are indeed laudable purposes to be attained in the administration of the affairs of the government, but Section Id, Article II, does not include economy or efficiency as reasons for declaring an emergency. If by a violent construction the words “peace, health and safety” should be construed to comprehend economy and efficiency, the bill is still wholly deficient of any provisions even tending to the production of economy and efficiency or the conservation of revenue. If the bill provided for withholding action upon the proposed improvement of a part or all of the highways now projected, or if it commanded the employment of a cheaper type of road, or if it placed a limitation upon the cost per mile for each type of road, or if it provided for delays in the construction of proposed public buildings, or if it limited the activities in any or all of the executive departments, or if it placed a maximum limitation upon the expenditures of each or all of the departments, or if it provided for a reduction in the number of appointees, or a reduction in their salaries, or any one or more of a hundred other means which might be resorted to in order to bring the expenditures of the state within the revenues, there would then be some argument in support of the claim that the emergency clause does relate to the subject of economy and efficiency. All of these questions are justiciable, and not political, and may properly be submitted to the court for determination.

It seems to be conceded in the majority opinion that the court may consider anything of which it has judicial notice, and it is therefore proper to suggest that the appropriation bills which were passed by the general assembly prior to the adoption of the “Administration Code” were largely in excess of the appropriations of any preceding general assembly, and if it really was the desire of the general assembly to bring the expenditures of the government within its revenues the most potent plan to carry out this laudable purpose would have been to limit the appropriations within the revenues, thereby making it impossible for “the appointive state departments” to be “wasteful and inefficient” to the point where such a condition might “become a fertile field for communism, bolshevism and anarchy.” This court will of course take judicial notice of the appropriation bills and a reference to those figures will be found to be of interest. The specific appropriations of the 84th general assembly, exclusive of moneys to be collected and expended for common schools, amount to $64,618,533.97. These large figures do not however include the appropriation of the proceeds of levies under house bill No. 325 (109 O. L., 360), to provide building funds for the universities of the state. This bill provides for a total levy of 375 thousandths of one mill to be levied upon all the taxable .property of the state for the years 1921-1922 and 1922-1923. These levies will produce for the two years approximately $7,500,000. These figures must therefore be added to the specific appropriations, bringing up the total to approximately $72,000,000.

The total expenditures for the last four fiscal years, each ending June 30, are as follows:

1917 —$21,293,020.88.

1918 —$22,827,295.61.

1919 —$25,934,104.33.

1920 —$29,579,264.84.

The figures for 1921 are not yet available.

It is a matter of common knowledge and therefore a matter of judicial knowledge that public officials will expend all the money which the legislature appropriates for the use of their respective departments, and it is only fair to presume that in the next two years the expenditures will total approximately seventy-two millions of dollars. This will be an increase of approximately sixteen and one-half million dollars over the two years ending June 30, 1920. All this is on the assumption that the future sessions of the 84th general assembly will make no additional appropriations.

The provisions of the Administrative Code, and the real intentions of the legislators, must be judged not merely by the words of that code and the words of the emergency clause, but also by the other deeds and the other words of the general assembly, as expressed in the appropriation bills, the last of which was passed before the submission of this cause to this court.

Let us turn our attention to a further consideration of the emergency clause. It is claimed in argument by counsel for the respondent that it was only necessary that the reasons stated in the emergency clause should have some relation to the public peace, health and safety, and that the question was only justiciable to the extent that the court might determine whether or not there was any such relation; that the extent to which it related to the public peace, health and safety was a political question lodged in the discretion of the legislature. It may be conceded that the court may not interfere with legislative discretion in matters where discretion is lodged in the legislature. In the passage of any law where an emergency exists the legislature has discretionary power to declare or omit to declare its existence, and thereby cause or omit to cause such legislation to go into immediate effect. Such discretion does not, however, reach to the determination of the existence of the emergency.

Let us therefore more carefully analyze the reasons stated in the emergency. One of the reasons stated in the emergency clause is that the balance subject to draft in the general revenue fund of the state was on June 30, 1919, more than $2,000,000 and that on June 30, 1920, this balance had shrunk to less than $1,000,000. It is a matter of astonishment that in making such comparison the legislature selected the years 1919 and 1920. It is very easy to obtain the daily balance to the credit of the general revenue fund, and by reference thereto in the office of the auditor of state it is found that on April 26, 1921, the day this bill was approved, the balance was $5,756,522.46. On June 1, 1921, the day the cause was submitted to this court, the balance was $4,978,697.66; and on June 30, 1921, which was exactly one year later than the date when the balance was less than one million, we find the balance to be $3,957,779.73.

We refer with some emphasis to this feature of the case and to these facts, because it was this particular sentence in the emergency clause which was relied upon in the majority opinion, and it was the only sentence which was quoted therein.

' In the emergency section and also in the majority opinion we are cited to the annual reports of the state auditor, and by reference to that citation we find some startling facts. While the balance in one fund was less by one million dollars, the balance in the aggregate of all the other funds was six millions greater on June 30, 1920, than on June 30, 1919. The same reports and the law and constitution of the state give the reason why the general revenue fund was below normal at that time. Laws providing direct levies for the state university and sinking fund had been repealed and the entire burden of the appropriations for those purposes fell upon the general revenue fund. On page 4 of the 1920 report the state auditor points out that the receipts for the general revenue fund were showing a rapid and encouraging growth and would be ample for all purposes. The figures for June 30, 1921, show that his prophecy became history.

Of what significance is a reduction of one million in one fund when there has been an increase of six millions in the other funds during the same period? Appropriations, expenditures, revenues, taxes, and public debt all increase each year until the prospect is truly alarming, but it does not present an emergency. It is a chronic state of affairs, which requires more drastic treatment than a wholesale change of the names and titles of our' public servants. A credit balance does not demonstrate efficiency in the public service, neither does a deficiency show the contrary.

But why was special and sole reference made to the general revenue fund? Manifestly it was because the other funds showed a larger instead of a smaller balance. Why was no comparison made of the cash balance in the treasury on those respective dates ? Manifestly it was because it was five millions greater on the latter date. ■ After all, appropriations, revenues and balances are within the control of the legislature, and a law which merely reorganizes the executive department does not strike at the root of the evil.

If the diminishing balance between June 30, 1919, and June 30, 1920, was valid ground for the charge of wastefulness and inefficiency, then the rapidly growing balance between June 30, 1920, and June 30, 1921, ought to stand to the credit of the appointees who were theretofore charged with wastefulness and inefficiency.

Another of the “reasons” stated- in the emergency clause is: “The state service in the appointive state departments, shown by said investigations to be wasteful and inefficient, is becoming increasingly demoralized.”

It must be borne in mind that the “Administration Code” relates only to those departments under the direct control of the governor. The “appointive state departments” referred to are those departments whose heads and subordinates are appointed by the governor. Many of these can be removed at will. The terms of appointment of others have either expired or are about to expire, and surely the remainder could have been removed on the grounds of “wasteful and inefficient service.” Indeed, another clause of the “reasons” states: “At the convening of the eighty-fourth general assembly numerous vacancies existed in various state offices and in various state boards, and other like vacancies have occurred since that time.'” It clearly appears therefore that an investigation was made two years ago by a committee of the 83d general assembly, that its report showed “wasteful and inefficient service,” that it has all the while been in the power of the state executive to remove the unfaithful servants, and that “numerous vacancies existed” which might have been filled six months before the law was passed, thereby preserving the public safety before the “immediate preservation” became so “necessary.” Surely some one has been fiddling while Rome has been burning.

The question before this court is, Shall the act go into effect immediately? Section 5 states that the necessity is “great and immediate.” Yet we find that though the act was approved April 26, its operative effect was by its terms voluntarily postponed to July 1. We further observe that though the general assembly was organized early in January, and though the investigations had been made two years previous, and though there were reports on file “declaring the necessity of reorganizing fundamentally the executive branch of the state government in order to promote efficiency and conserve the public funds,” nevertheless the fiddling continued to April 26 and then it was declared that the “immediate preservation” was not so “necessary” but that it might safely wait until July 1.

_ The situation was claimed to be so emergent that a delay of ninety days would greatly endanger the peace, health and safety, yet a delay from April 26 to July 1, a period of sixty-five days, could be negotiated with perfect safety.

By this decision a great wrong has been com-: mitted, a wrong which reaches much farther than the declaration of a false principle. The decision will ultimately be reversed and the true principle, the principle of the Miami Conservancy case and the principle of the Zangerle case will be restored, but the real, the substantial damage, which consists in the outrage which has been perpetrated upon the people in nullifying the solemn provisions of the constitution by judicial pronouncement, instead of amendment and repeal by the means regularly provided, can never be repaired. That which was created by a large majority vote of the people in 1912, when every voter had an equal voice, may not be destroyed in 1921 by the votes of four members of this court. There is no place in this opinion for an argument upon the merits of the provisions of the Administrative Code. It may be assumed that it is a wise piece of legislation, but I deny that it was regularly enacted. Neither do I comment upon the merits of the principle of the referendum. The debate on that subject closed on September 3, 1912. Much has been said in late years about judge-made law, and its condemnation has been expressed in emphatic terms; we have here, however, a judge-made provision in the people’s constitution.

The majority opinion is a practical demonstration of the proposition that the power to interpret is the power to establish; it is equally the power to destroy.

The words of Abraham Lincoln in his first inaugural address, referring to the Dred Scott decision, are applicable: “If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, * * * the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

By this decision the confidence of the people in representative government has been rudely shaken. The majority opinion pretends to see in the deplorable financial condition of our state grave danger to the public safety, and “a fertile field for communism, bolshevism and anarchy.” The contrary view would seem to be more sound. In the face of public danger, no matter of what character, the ties of government are always more closely knitted together. On the other hand the most fertile field for culture of revolutionary doctrine is found in the destruction of the confidence of the people in their institutions of government.

The crying need of this government of the people is that the great body of the people should take a more active, a more unselfish interest in politics; that they should study the problems of statecraft and give to the management of public affairs the same attention that they give to their private interests.

Primary elections, the initiative and referendum, and other popular governmental functions were designed to stimulate popular interest, and to attempt to eradicate political bossism, and who shall deny that substantial progress is being made ?

The constitution is the sacred product of the sovereign people, and as the mythical Minerva sprang into existence full grown from the brain of Jove, in like manner our very real constitution sprang full grown from the brain of the people, and neither our courts nor our legislatures may cause it to increase or diminish. The people of Israel during their sojourn were for the most part subservient to Divine authority, but occasionally they felt strong enough to be independent of their Creator, and in each instance received well-merited chastisement. Each of the three departments of our government may well profit by this lesson from Holy Writ.

Johnson, J.,

dissenting. With the utmost respect for the majority of the court, I am impelled to place my dissent on record in this case.

I am convinced that the statute involved violates constitutional provisions which are in a very unusual sense the clear expression of the will of the people written into the fundamental law by the people themselves.

The ground upon which I dissent is the simple clear language of the constitution. As the genesis of the initiative and referendum provisions of the constitution is found in the popular will formed in the slow and sure processes of experience, so the disregard of those provisions by the legislature is a thing much to be regretted, because of its effect upon the confidence of the people in the strength of constitutional government.

No part of the fabric of the constitution of our state was ever adopted which was more generally discussed by those favoring and those opposing than the provisions involved in this case. After that discussion the people, only a few years ago, by a large majority, wrote them into their constitution. That those provisions were prepared with very great care and scrutiny is evident from the most casual or the most careful reading. The framers were not content to adopt the initiative and referendum provisions in general terms; the reservation to the people of the legislative power therein contained is not only emphatic and explicit, but is safeguarded by careful, clear and elaborate provisions. More than four pages of the printed constitution are occupied by these comprehensive provisions. In order to assure full vitality and save the reserved right from any possible interference or obstruction, it is expressly ordained that the provisions in the initiative and referendum section shall be self-executing, and then follows the solemn sovereign admonition — the concluding clause — “Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provision or the powers herein reserved.”

Recognizing that 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, should go into immediate effect, the people so provided. But they were not willing even to make this proviso without safeguards, and so they required in Section Id of Article II that such emergency laws could only be passed upon a yea and nay vote, that they must receive the vote of two-thirds of all the members elected to each branch of the general assembly, and that the reasons for such necessity should 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.

Every legal authority and every court which has spoken with reference to rules for the construction of constitutions has said that the language, because it is the language of the people, must be construed in its plain popular sense. The plain people of Ohio placed this proviso in the constitution, knowing that they were saying what they meant and believing that the legislature and the. courts would construe it to mean what they said, namely, “emergency laws necessary for the immediate preservation of the public peace, health or safety.” That is, there must be an emergency and the law must be necessary for the immediate preservation of the public peace, health or safety. When a thing is necessary for the immediate preservation of another thing, the only conceivable conclusion is that, that other thing is in danger, and that the danger is of such a character that unusual and extraordinary steps are necessary to be taken at' once to prevent the destruction of the thing to be preserved. The necessity of a law for the preservation of the public peace, health and safety implies that unless the law is passed the public peace, health and safety will be destroyed, or seriously impaired.

The constitution commands that it is only when such a law is passed that the people can be deprived of the referendum. Then after the emergency law has received the two-thirds vote of all the members elected, the reasons for such necessity are required by the constitution to be set forth. That is to say, that, along with the law itself, the reasons for the necessity of its going into immediate effect must be stated, so that all the people can see why they are to be deprived of the right to participate in the making of that law. And the only possible ground for the setting forth of the reasons is that the people in making the constitution wanted the right and the opportunity to see if the reasons were such as to show that the law was passed in an emergency, an exigency, and was necessary for the immediate preservation of the public health, peace or safety. And they wanted the further right to have their courts scrutinize and examine the reasons; and if on their face it is seen that the reasons given are not valid reasons -why the law should be passed as an emergency or is necessary for the immediate preservation of the public health, peace or safety, the court should so declare and restore to the people their right to pass upon the legislation by the referendum which they have so carefully ordained.

It is the duty of the court to ascertain and determine whether the legislature has in any way wrongfully restricted “the powers herein'reserved.”

The decisions of the courts of some of the western states have been cited in the briefs of counsel on both sides. Those decisions are not in harmony. However, research discloses that the provisions in the constitutions of those states are different from those in Ohio in some essential respects, some of them not differing so much as others. Although the view we have here indicated is supported by the decisions of some of those states in opinions of great force and cogency, an extensive examination of them would not be of assistance here, for the reason stated, and for the further reason that an inspection of the Debates of the Ohio Constitutional Convention shows that our provision, Section Id, was the result of much discussion and deliberation and was adopted after a number of other drafts in different language had been proposed and considered. This fact also appears in the majority-opinion in this case. The provision finally- adopted expressed the best judgment of the constitutional convention after that full deliberation, and is the one which the legislature and the court are sworn to enforce.

The essential difference in reference to the provisions of other states, as throwing light on the decisions of some of those states, consists in the fact that in Ohio there is the explicit direction which I have pointed out, that the reasons for such necessity shall be set forth in the law; and so far as this state is concerned there is the unavoidable conclusion that it was required that these reasons should be there set forth for the purpose of having them laid before the people and the court in order to test their sufficiency.

It would be a vain and meaningless thing to hold that after some pretended reasons had been stated in the law, no further attention could be paid to them by the people or the courts, however irrelevant they might be, or however much they might fall short of anything like real reasons showing the necessity for the immediate preservation of the public peace, health or safety.

Moreover, this court has explicitly settled the question whether the action of the legislature in passing a law, and its simple declaration that an emergency exists, are sufficient to close the door against the court, to operate to deprive the people of the right of referendum, and to abolish the plain provisions of the constitution and destroy the “powers herein reserved.”

In County of Miami v. City of Dayton, 92 Ohio St., 215, it is declared in the syllabus: “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.”' And it must be noted that a very significant feature as to the syllabus in that case is that it bears on its face the clear evidence that the syllabus had the careful study and attention of every member of the court, and further that this particular paragraph of the syllabus received the emphatic approval of every member of the court. This is manifest from the fact that three members of the court dissented from proposition 4 of the syllabus, which related to the validity of a three-tenths mill levy provided for in the act. All the other propositions in the syllabus, including that relating to the emergency character of the act, received the affirmative approval of every member of the court.

In view of that deliberate conclusion, that question must be regarded as decisively settled so far as Ohio is concerned.

I have referred to this phase of the case only because it is seen from the opinion of the majority that there are two judges who hold a different view. However, it also appears from the opinion of the majority in this case that two members of the majority concur in the view that I have stated above. It is, therefore, seen that there are five members of the present court who hold to the view that it is the duty of the court to examine and pass upon the emergency character of the act, and that the action of the general assembly is not conclusive in that behalf.

Likewise has the question of what constitutes emergencies received the comprehensive study and decision of this court.

In State, ex rel. Menning, v. Zangerle, Auditor, 95 Ohio St., 1, after defining on page 8 the word emergency as (1) “A sudden or unexpected happening; an unforeseen occurrence or condition; specifically, a perplexing contingency or complication of circumstances” and (2) as “A sudden or unexpected occasion for action; éxigency; pressing necessity,” it is said: “It is difficult to conceive of a road becoming out of repair from any cause other than one of those enumerated in Section 7419, to'-wit, freshet, landslide, wear of watercourses, or other casualty, or by reason of the large amount of traffic thereon, neglect or inattention to repair. * * * The condition occasioned in a manner stated in our first classification constitutes an ‘emergency.’ It is the result of a sudden or unexpected happening, an unforeseen occurrence, an extraordinary condition; while a condition arising under our second classification has to do only with injuries resulting naturally and necessarily from the use of the roads, or from mere neglect or inattention of the county commissioners, which could readily have been foreseen and cared for by the usual and ordinary methods. The one condition is extraordinary and unforeseen, the other natural, usual and to be expected. The one class constitutes an emergency, the other certainly does not.”

Now, take the law that is involved in this case. The purpose of it, as stated in its title in accord*ance with constitutional requirement, is “To establish an administrative code for the state, to abolish certain offices, M create new administrative departments and redistribute among them existing administrative functions, and for such purposes enacting * * * [here follow the numbers of the chapters and sections to be amended or repealed] and to declare an emergency.”

There is absolutely no relation whatever between any of the purposes stated in 'the title of the act and an emergency. Let the reader of this opinion read that title over again and think about it. Then look at the law itself. It reorganizes practically the entire executive branch of the state government, with the exception of the Secretary, the Auditor, the Treasurer and Attorney General of the State. Nine new executive departments are formed, and upon these new executive departments are conferred the duties and powers heretofore vested in other officers of the state, and their offices are abolished.

A close study of the provisions of the act fails to discover any provision which would lead anyone to think that it was being adopted as an emergency law to meet • the necessities of a sudden or unexpected occasion or exigency for the immediate preservation of the public health, peace or safety, or that it was being passed to meet, as stated in the Zangerle case, supra, a condition which is extraordinary and unforeseen.

The provisions of the old law with reference to the Adjutant General, whose duties are closely related to the preservation of' the public peace and, safety, are unchanged. The office of State Fire Marshal is embraced within the provisions of a new department, but his duties concerning the public safety are in no wise enlarged or changed; and there is nothing to indicate that any provisions are being made to accelerate or strengthen the efficiency and the power of either the Adjutant General or the Fire Marshal. The same remark must be made with reference to the Department of Health. As to that department all the provisions of the new law are contained within two short sections, and in those two sections the provisions merely are that the laws already in existence shall apply to the new Health Department.

Surely it would seem to be clear that the legis-. lature did not feel that the governmental machinery already provided and long in existence for the preservation of the public health, peace and safety was weak and inefficient, or that it was confronted with an emergency which necessitated a law for the immediate preservation of the public peace, health and safety.

Not only is there nothing in the entire body of the law to indicate that there is any emergency which makes necessary the. passage of such an emergency law, nor to indicate that the provisions of this particular law have any relation to such a subject, but the reasons for such necessity as set forth in Section 5 of the act utterly fail to disclose any such necessity, or such emergency.

Look at those reasons!

It is stated, first, that the 83d General Assembly, which met over two years ago, created a joint legislative committee to investigate all of the offices with a view of centralizing the duties of the various departments, eliminating such as are useless, and securing such a reorganization of the government as will permit greater efficiency and greater economy. It is then stated that the committee made an exhaustive investigation and published numerous reports declaring the necessity of such reorganization, in order to promote efficiency and conserve the public funds. It is then recited that upon organization of the 84th General Assembly, which met last January, special committees were appointed in each House to consider the recommendations of the former committee, that the Governor recommended action along the general lines indicated, and that wide publicity was given to the various plans. It is then recited that according to the annual reports of the auditor of state the balances subject to draft in the general revenue fund, from which many of the activities of state government are supported, have shrunk from more than two million dollars on June 30, 1919, to less than one million on June 30, 1920, all of which and more is covered by unlapsed appropriations for the preceding fiscal year, and it is then said that this clearly indicated the immediate necessity either for increasing the revenues of the state or for effecting such reorganization of the state government as would tend to preserve the present revenue; that general economic conditions make increased taxes highly undesirable at the present time.

Having read the above, one naturally looks to the act to find the provisions that meet the needs stated, and there is not one word which even pretends to accomplish such a purpose, or which even seems to contemplate that end. But the particular thing to be observed is that there is not in that statement anything that constitutes an emergency or indicates any necessity for the immediate going into effect of the provisions of the law under investigation, in order to secure the preservation of the public peace, health or safety. Those recitations have no relation to the public health, peace or safety.

The recital continues by stating that at the convening of the 84th General Assembly numerous vacancies occurred in various state offices, and in various state boards, and other like vacancies have occurred since that time; that by reason of the known probability of a reorganization, such as is embodied in this act, persons appointed to fill such vacancies have uncertain tenure and are thereby deterred from initiating and carrying through definite administrative policies; that in several instances such appointments have been accepted temporarily only, pending early reorganization. That is to say, the legislature has solemnly declared that because of the fact that it has proposed to adopt a comprehensive and revolutionary reorganization bill the efficiency of the state government has been affected, and that the activities of the government are impeded while awaiting the accomplishment of the impending changes. It amounts to a declaration by the legislature that it has itself brought about a state of confusion which is hurtful and undesirable, but even then it does not disclose in this situation any relation to the public health, peace or safety, or to the necessity that the provisions of this particular law should go into immediate effect for the preservation thereof.

If the reorganization of the administrative departments of the government, the machinery of government, so as to change the form theretofore held, is an emergency necessary for the preservation of the public peace, safety and health, then the creation of any new powers, or the suspension of any existing powers, could be declared by the legislature to have been made in order to meet an emergency of that character, and such would amount to a declaration that the initiative and referendum was a meaningless thing to be set aside by the general assembly at will — a dangerous proceeding which tends to destroy the confidence of the people in their government.

Then follows the provision that as a result of all the foregoing the state service in the appointive state departments, shown by said investigations to be wasteful and inefficient, is becoming increasingly demoralized; that all of these departments exercise functions pertaining to the protection of the public health, the conservation of the public peace and morals, or the promotion of the public safety.

It is a sufficient observation as to the sentence just quoted to say that the provisions of the statute involved in this case, in specific terms, keep alive the old laws providing for and controlling the departments referred to which “exercise functions pertaining to the protection of the public health, the conservation of the public peace and morals, or the promotion of the public safety.”

The act contains on its face the complete refutation of the necessity of its becoming immediately effective in order to preserve the public peace, health or safety.

By Section 4 it is provided that the reorganization shall be put into effect at the commencement of the next succeeding fiscal year, that is to say, July 1. The date of the law is April 26, 1921. By the terms of the constitution the electors would have until July 26 to take the necessary steps for a referendum. As the new law by its own terms does not become effective until July 1, it is difficult to accept the suggestion that there is such an emergency affecting the public health, peace or safety as demands that the people shall not have those 25 days in which to act themselves.

A very considerable portion of the opinion of the majority in this case is devoted to the exposition of the uniform rule, everywhere accepted, that courts will not hold laws to be unconstitutional unless found to be clearly violative of some express constitutional provision, and the names of a number of eminent men, who have made lasting and valuable contributions to our system of jurisprudence and to the development of our American institutions, are given, and decisions of this court are cited in which this well-accepted principle is recognized.

I am wholly unable to see the application of those principles to the case we have here. The question of the validity and constitutionality of the reorganization act is not here involved. What is here contended is that when the legislature in obedience to the constitution stated the reasons why the people should not have the right to exercise the referendum privilege given them by the constitution, and when it stated the reasons why this law should go into immediate effect, because necessary for the immediate preservation of the public peace, health and safety, it was plainly to be seen that those reasons had absolutely no relation to the subject stated.

The rule which declares that no law shall be held by the court to be invalid unless clearly in violation of the constitution is a most salutary one and contributes to the orderly administration of government, but it is more than a hundred years since Chief Justice John Marshall, by his unanswerable logic in Marbury v. Madison, 1 Cranch, 137, demonstrated the power and duty of the court to make that declaration when a statute does violate the constitution.

Now, surely the legislature has no more right to say that a bill is an emergency measure, when upon its face it plainly is not, than it has to pass a statute which plainly violates the constitution. Neither has it any right to conclusively bind the people and the court by setting forth reasons which declare the existence of an emergency which creates the necessity for an emergency law necessary for the immediate preservation of the public health, peace and safety, when it is apparent from an inspection of those reasons that they do not disclose any such emergency or such necessity.

As stated above, I agree with the majority that where there is doubt as to the constitutionality of a statute the doubt should be resolved in favor of its validity and the legislative power conferred upon the general assembly should in such case be upheld. So in this case the legislative power conferred upon the people by the constitution should be upheld; and where there is doubt as to the sufficiency of reasons or declarations for taking away this constitutional right of the people, that doubt should be resolved in favor of the constitutional privilege which belongs to the people.

I commend the anxiety expressed in the majority opinion concerning the advance of anarchy, bolshevism and communism. The followers of those dangerous cults are all opposed to constitutional government. Each approaches' the same destructive end, but along different lines. They all oppose property, contract rights, and all of the inalienable rights secured by the guaranties of our constitution. I know of no more ■ effective way to promote the advance of the disintegrating influences referred to than by creating the impression that by illegitimate and unconstitutional practices the strength and vitality of constitutional government is being undermined.

The question in this case is not whether the referendum is wise or unwise, but whether a provision of the constitution, regularly adopted, and written in plain and simple language, may be ruthlessly swept aside. The court has of right absolutely nothing whatever to do with the wisdom of that provision. Its only anxiety should be for the firm enforcement of the constitution.

Suppose the courts of the country in the years since the establishment of the government had been less mindful of that duty, how different our history might have been. The best guaranty that the courts of last resort will fully meet their great responsibilities will be found in their firm and fearless adherence to the fundamental law. The value of their contribution to the success of constitutional government will be measured by the degree of public confidence which they inspire.

I am convinced that whatever may be said, the vast body of our citizenship have learned to have faith in the courts of the country. Comparatively few of the people have seen the United States Supreme Court or the Supreme Court of their respective states. The ordinary good citizen knows very little of their procedure or of their jurisdiction. But he has within him a simple abiding faith that the unalienable right to life, liberty and the pursuit of happiness, which were assured to. him- in the great Declaration, will be preserved to him by the courts. Who shall say that it is not a noble faith? He knows that the government is the instrument, the concerted plan of the people, to secure those rights and preserve the orderly processes of society, and he has been deeply imbued with the principle that he has a right to participate in that government. That faith is the most essential element by far to the maintenance of that powerful thing, spiritual and material, which we call America.

There is no more delicate thing than public confidence. Constitutional government, free institutions, the republic, cannot exist without it. It must never be forgotten that our whole constitutional system rests upon popular sovereignty.

I cannot give my consent that this provision of the constitution shall be set aside and shorn of its practical vigor by the legislature, and the people be left without the right which they supposed they had secured to themselves.

The reasoning of the great Chief Justice, John Marshall, in Marbury v. Madison, to which I above referred, cannot be too often impressed upon the courts, the legislatures and the people.

“To what purpose,” said he (page 176), “are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

“Between these alternatives there is no middle ground. The constitution is either a superior paramount law,, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

Cheerfully conceding that the majority have conscientiously arrived at a different conclusion, I have felt it my duty to place this dissent upon the record in the hope that it might to some extent operate to check further tendency by the general assembly to disregard the plain provisions of our constitution, however vain and fanciful that hope may be.

Wanamaker, J.,

dissenting. In the briefs and oral arguments in open court it was clearly conceded upon all hands that there was one leading question in this case, which in substance is:

The Major Question. When the legislature enacts a statute as an “emergency law,” and therein provides that it shall go into “immediate effect,” and hence not be subject to the referendum, is such legislative judgment a finality, or may it be reviewed by the court? In short, Is the constitutional limitation on the legislature in the enactment of emergency laws subject to the same judicial review as are all other constitutional limitations upon legislative acts?

In 1915 this court held in the Miami Conservancy case, 92 Ohio St., 215, in the last paragraph of the syllabus, as follows:

“11. 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 limit, either as to the constitutional vote or the emergency character of the act.”

The following judges concurred: Nichols, C. J., Donahue, Newman, Jones, Johnson, Matthias and Wanamaker, JJ.

As clearly showing the care with which this syllabus was considered, each and every paragraph, eleven in all, the following note appears at the end of the record of that case:

“Johnson, Jones and Matthias, JJ., dissent from paragraph 4 of the syllabus.”

But there was no dissent from paragraph 11.

Five of the judges of the supreme court are still agreed that the determination of this question is within the jurisdiction of the supreme court of Ohio — that the question is not solely legislative, but judicial, exactly the same as when any other constitutional limitation upon the legislature is involved.

Since the days of John Marshall this doctrine has become a part of our American jurisprudence, state and national. It is no longer questioned. The Oregon case to the effect that the question is purely legislative, cited to sustain the view of the minority judges, Jones and Matthias, has no application in Ohio, where in half a dozen respects the constitutional provisions are essentially and radically different. The Oregon decision is a mere “Thus saith the court.”

True, in principle, the referendum is the same everywhere, if it be a referendum. The provisions, however, are what the respective constitutions make them, and it is the constitutional provisions that control the legislature and the courts, and not the principle merely. It would seem sufficient to say that the word “emergency” is nowhere in the Oregon Constitution. It twice appears in the Ohio Constitution, in a separate section dealing especially with “emergency laws” as “emergency laws.”

The Constitution of Ohio, as amended in 1912, wisely provided that “The decisions in all cases in the supreme court shall be reported, together with the reasons therefor.” Prior to that time the majority of the cases, often the big and most embarrassing ones, were decided without any opinion, or without any “reasons therefor.” The people of Ohio realized that the best test of reasonable judgments was sound “reasons therefor.” The majority in this case have undertaken to give “reasons” for this decision in the somewhat unusual form of a per curiam.

I want now to legally inspect and logically analyze these “reasons therefor,” as they appear in the opinion.

The first section of the opinion undertakes to justify the two judges, Jones and Matthias, for holding that this is a legislative question and not a judicial question, though five of the judges agree that it is a judicial question. This first section of the opinion is therefore wholly foreign and entirely irrelevant to the merits of this case or in support of the judgment, which is based upon the proposition that it is a judicial question. It is self-evident that the exploitation of any theory by a minority cannot reasonably support the theory of a majority, which is necessary for any decision. I may therefore dismiss the first section, dealing with the nature of the question, whether legislative or judicial, as simply a case of padding this opinion with matter wholly unrelated to the decision, and as representing the minority view of only two judges, both of whom held in the Miami Conservancy case the exact contrary of what they hold now. It may be said, however, in passing, that the Miami Conservancy case did not present the exact question as to the “reasons for the necessity” that is presented here. Admitted. It did present, however, the question of constitutional sufficiency of the vote; that is conceded to be a constitutional limitation in the same section of the constitution as the “reasons for necessity” appear, both being constitutional limitations. If one is subject to judicial review, the other must be subject to judicial review.

The second section of the majority opinion deals with the so-called constitutional question. It emphasizes again and again the proposition that every legislative act is presumed to be constitutional, and that before such legislative act can be held unconstitutional the conflict must be clear and convincing, even beyond a reasonable doubt. Many authorities are cited. These citations and repetitions of this old elementary proposition that has scarcely been disputed for a century or more are likewise entirely foreign and irrelevant to the question involved in this case.

The majority have devoted much labor and space to arguing a perfectly obvious proposition as to the presumption of the validity of the statute, and the degree of conflict necessary to invalidate a statute as unconstitutional. It has absolutely no relevancy here. It is not even referred to in the seventy-four pages of briefs of the defendants in error, who have covered every possible and even remote phase of this case. We of the minority do not claim there is any conflict .between the provisions of the act, known as the “Administrative Code,” and the constitution. That is-not here for review, and no question in this behalf was raised in the briefs or arguments. The only question here is as to when this act, presumed tq.be legal, presumed to be constitutional, is to go into effect.

The constitution announces the general policy that legislative acts shall not go into effect for ninety days, and then in a separate section, Id, Article II, makes three exceptions: 1. Tax levies. 2. Appropriations. 3. Emergency laws necessary for the immediate preservation of the public peace, health and safety.

The major part of this Section Id is then devoted to limitations upon the legislature as to such emergency act, in order to withdraw it from the right of referendum and give it “immediate effect.” The legislature declares in the Administrative Code that this act' shall go into immediate effect. It was passed April 26th. And while there is an express declaration in the act that it shall go into immediate effect, the whole act shows that it was not intended to go into effect until July 1st, two' months and five days after it was passed.

We here have a clear admission that for two months and five days there was no emergency, in the judgment of the legislature, that was to be met by this act, but that there would be an emergency for the remaining twenty-five days before the ninety-day period of the constitution would expire. Amazing, isn’t it?

This Section 5, the emergency clause, is not a part of the legislative act, as that term is generally used. It is like a schedule to the act, in order to withdraw it from the constitutional provision relating to the ninety-day limitation. It is like a schedule to a Constitutional Amendment providing when that amendment shall go into effect, but otherwise bearing no relation to the meaning, terms or scope of the amendment.

I contend that this is the only common sense, consistent view of it, and that all these quoted authorities, however respectable on matters relevant, are absolutely without any relevancy here. My brethren of the majority have simply erected a smokescreen, quoting authorities that have no more relevancy to the question at issue than the Rule in Shelley’s Case, or the parable of the Good Samaritan.

But it might be put in another form.

Under the constitution the denial of the right of the people to approve or reject this Administrative Code is as vital to the making of a valid legislative act as if either the house or the senate were denied the right to approve or reject the legislative act. Certainly the master’s rights under the constitution should have consideration equal to that given the rights of the master’s servants, the members of the general assembly.

I come now to consider the third section of the opinion, which deals with the only question, and the only matter really involved in this case, and that is, Have we here an emergency law, necessary to go into effect July 1, twenty-five days before the expiration of the ninety-day period, by reason of an emergency in fact, in order to immediately preserve the public peace, health and safety, which has been suddenly and unexpectedly threatened or imperiled ?

I come now to critically and candidly examine the last part of the opinion above referred to, dealing with the “emergency.”

In the last two or three pages, devoted to a discussion of this phase of the case, the word “emergency” is nowhere defined.

Some words are so common, so usual, so familiar, in our everyday life that they need no definition; but not so with the word “emergency,” as will appear from the definition.

I want here to pause a moment to express my gratitude to the majority for having quoted me at such length in the City of Xenia case, supra. I want to declare my appreciation, not alone in words. I shall endeavor to demonstrate it by works in this very case. I shall use it as a precedent for reference to the opinions of the majority Judges, which I trust shall be somewhat more relevant and appropriate to the issue here involved than the reference made to my opinion in the City of Xenia case.

In a comparatively recent case, decided in 1916, State, ex rel. Menning, v. Zangerle, Auditor, 95 Ohio St., 1, the following Judges concurred: Johnson, Wanamaker, Newman, Jones and Matthias. Judge Matthias wrote the opinion of the court. The question related to an emergency under Section 5649-4, General Code.

In order that I shall do no injustice to the Judges who concurred in this judgment, and the Judge who wrote the opinion, let me quote at some length.

Section 5649-4, General Code, so far as pertinent, reads: “For the emergencies mentioned in sections * * * seventy-four hundred and nineteen * * * the taxing authorities of any district may levy a tax sufficient to provide therefor irrespective of any of the limitations of this act.”

What were the terms and conditions in Section 7419 to which the word “emergencies” relates ?

That section, so far as pertinent, reads:

“When one or more of the principal highways of a'county, or part thereof, have been [1] destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty, or, [2] by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof, have become unfit for travel or cause difficulty, danger or delay to teams passing thereon, and the commissioners of such county are satisfied that the ordinary levies authorized by law for such purposes will be inadequate to provide money necessary to repair such damages or to remove obstructions from, or to make the changes or repairs in, such road or roads as are rendered necessary from the causes herein enumerated, they may annually thereafter levy a tax at their June session,” etc.

The question was as to whether or not all the highways that had become out of repair and unfit for travel, mentioned in Section 7419, were included within the word “emergencies” in Section 5649-4.

Therefore the first question to be determined was, What is an emergency? And Judge Matthias proceeded to answer that question in the opinion, page 8, as follows:

“The word ‘emergency’ as used in this statute is to be taken in its natural, plain, obvious and ordinary signification. The Century Dictionary defines it as follows:
“(1) ‘A sudden or unexpected happening; an unforeseen occurrence or condition; specifically, a perplexing contingency or complication of circumstances.’
“(2) ‘A sudden or unexpected occasion for action; exigency; pressing necessity.’ ”

It may be that the excessive modesty of the majority, or of one of its concurring members, forbade the use of this quotation. But it would seem that at least something should have been said about the scope and meaning of “emergency” as approved by standard dictionaries, or by courts in similar adjudicated cases, especially our own court and in a recent case.

Now, apply this definition as Judge Matthias applied it. I again quote, page 8:

“Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty, any one of which conditions comes within the term ‘emergency’ as above defined; the second, those roads which by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon. It seems quite probable that the legislature must have had this classification in mind when in Section 5649-4 it used the term ‘emergencies.’ The condition occasioned in a manner stated in our first classification constitutes an ‘emergency.’ It is the result of a sudden or unexpected happening, an unforeseen occurrence, an extraordinary condition; while a condition arising under our second classification has to do only with injuries resulting naturally and necessarily from the use of the roads, or from mere neglect or inattention of the county commissioners, which could readily have been foreseen and cared for by the usual and ordinary methods. The one condition is extraordinary and unforeseen, the other natural, usual, and to be expected. The one class constitutes an emergency, the other certainly does not.”

Later on in the opinion, at page 10, Judge Matthias continues:

“The word ‘emergencies’ thus used would mean a sudden or unexpected happening or unforeseen occurrence or condition and would also mean a condition gradually created, and therefore expected and foreseen by those whose very neglect and inattention had caused it. This absurd conclusion is necessarily reached by the adoption of the theory that all of the purposes mentioned in Section 7419 are emergencies.”

If it was absurd then, is it any less absurd now?

This doctrine, announced in the opinion by Judge Matthias, was carried into the syllabus of that case, as follows:

“3. Exemption from the restriction fixed by such law applies only in favor of levies required to meet extraordinary conditions resulting from some unexpected or unforeseen occurrence or circumstance, such as the destruction ’of or damage to a principal highway by freshet, landslide, wear of watercourses or other casualty.
“4. Neglect or inattention of public officers to repair highways does not constitute an emergency, and a levy of taxes for the purpose of meeting the expense of reconstruction, repair and maintenance of roads which, by reason of such neglect and inattention, or by reason of a large amount of traffic thereon, have become gradually worn out and unfit for travel, even though they cause difficulty, danger or delay, is not exempt as an emergency levy.”

Concurring in this syllabus were Judges Johnson, Wanamaker, Newman and Jones.

In the Zangerle case, then, this definition and doctrine as to an emergency is held to apply, with strict construction, to the exceptions made to the Smith one-per-cent, law, — that is, emergencies under Section 7419, General Code, — and so applying the definition to such exceptions to the general statutory policy of the Smith one-per-cent, law the court in that case limited the emergencies to those that were sudden, unexpected, and unforeseen. So, here in this case, the emergency laws that constitute an exception to the constitutional policy, the right of referendum, must be defined and applied with equal strictness.

I, call for the most careful reading of the Zangerle case. As the Miami Conservancy case absolutely settles for Ohio that this is a judicial question, so the Zangerle case absolutely settles for Ohio the question that this is not an emergency.

Both cases should have led this court to a unanimous opinion and judgment exactly contrary to the one arrived at.

I have examined and cross-examined the opinion of Judge Matthias in the Zangerle case, and the concurrences of both Judges Matthias and Jones in both the Miami Conservancy case and the Zangerle case, with a view to paralleling their former declarations with their present declarations.

I submit the foregoing to the candid and conscientious judgment of the people of Ohio.

A principle is a principle and not a convenience, not an elective thing that you can apply merely at pleasure. It should be applied equally and equitably to all similar situations, and must be applied in this case; and when so applied calls for an exactly contrary judgment to the one that is rendered.

Now let us see what the majority say touching the emergency matter involved in this case.

It is somewhat strange that in this mere per curiam, which is of unusual length for such, but which divests any individual member of the majority from personal responsibility for it — it is somewhat strange, I say, that so small a portion of it as the last two pages are the only relevant thing in the opinion tending even in a remote way to sustain the judgment.

I want to begin this part of the discussion with a quotation from the majority opinion in the recent case of Pohl v. State, ante, 474, from which is quoted these words: “If under any possible state of facts the sections [of the law] would be constitutional, the court is bound to presume that such facts exist.”

This doctrine in the main is sound in the case from which it is quoted, which dealt entirely with the jurisdiction of the legislature in the exercise of its police powers. Broad as that term, is, it certainly has no application to the case at bar, because the constitution expressly and explicitly limits the legislature to a “state of facts.” The constitution itself makes it mandatory upon the legislature to put “the reasons for such necessity,” which of course must include the facts, and, much more, the conclusions therefrom, into a separate section and pass it separately upon a yea and nay vote. This is jurisdictional and the action of the legislature must stand or fall on what is within the act and not on “any possible state of facts.”

As a logical proposition it would be sufficient to say that this major premise of the third section of the per curiam, dealing with the emergency portion of the Administrative Code, being in itself false and fallacious, the conclusion, the judgment of this case, must also be false and fallacious, for a conclusion cannot be stronger than the premises upon which- it is based.

Let us now examine Section 5 of the act for “the reasons for such necessity.”-

What necessity? Why the necessity for immediate preservation of the public peace, health and safety, which must have been suddenly and unexpectedly endangered or imperiled, necessitating an emergency law to. meet and relieve against an emergency in fact, to go into “immediate effect.”

I am relieved from a consideration of the entire section, composed of five or more paragraphs, which exhibit most industrious and labored effort on the part of the general assembly to state an emergency, or “the reasons for the necessity,” as expressed in the constitution, for the majority opinion itself disregards two-thirds of the section as too trifling and unmeritorious to be worthy even of consideration. They select one-third of it as the basis for sustaining the act as a valid act going into “immediate effect” and denying the people’s rights of referendum.

That one-third of Section 5, which is reviewed in the last two pages of the per curiam, as the major premise of the judgment, follows:

“According to the annual reports of the auditor of state, the balances subject to draft in the general revenue fund of the state, from which many of the activities of the state government are supported, had shrunk from more than two million dollars on June 30th, 1919, to less than one million dollars on June 30th, 1920, (all of which, and more, was covered by unlapsed appropriations for the preceding fiscal year), clearly indicating the immediate necessity either for increasing the revenues of the state, or for effecting such a reorganization of the state administration as would tend to conserve the present revenues. General economic conditions make increased taxes highly undesirable at the present time * * * As a result of all the foregoing, the state service in the appointive state departments, shown by said investigations to be wasteful and inefficient, is becoming increasingly demoralized * * * The necessity of placing their functions upon a sound, economical, permanent and secure basis is great and immediate.”

Now what does the majority opinion say as to this one-third of Section 5?

The opinion says:

“The reasons assigned show a fiscal condition in our state which demands immediate relief. These impute the bankruptcy of the state if the present condition of affairs is allowed to exist. A shrinking of more than one million dollars in a single year in the general revenue fund of the state would seem to demand some immediate remedy for the peace and safety of the state; for a bankrupt state, or a grossly overtaxed state, is on the threshold of dissolution and becomes a fertile field for communism, bolshevism and anarchy. We have but to look to our neighbors to the south or across the seas for a verification of this assertion. If this act results, as the legislature declares it will, in saving to the state its diminishing revenues, without further taxation, such an end would be not only a consummation devoutly to be wished, but would tend toward the preservation of the public peace and safety, and would be such an emergency law as was contemplated by the members of the constitutional convention in the enactment of Section Id of Article II.”

Well, here we'have the emergency uncovered:

1, Bankruptcy.

2. Bolshevism.

I now read Section 5 most carefully and fail to find either bankruptcy or bolshevism suggested in it. Of course the majority have construed it into Section 5, in its opinion, but that does not exactly put it in Section 5 and make it a part of Section 5, in either the legal mind or the popular mind.

What does the language quoted above say about either bankruptcy or bolshevism ?

First, as to bankruptcy. It says that the “revenue fund of the state * * * had shrunk from more than two million dollars on June 30th, 1919, to less than one million dollars on June 30th, 1920, - * * * clearly indicating the immediate necessity either for increasing the revenues of the state, or for effecting such a reorganization of the state administration as would tend to conserve the present revenues.”

Nowhere does Section 5 show the state of the “general revenue fund” at the time the law was to go into effect. It did state that one year before, under war prices, it was a million dollars less than it had been one year prior to that. But this fund is always fluctuating, and' for aught that appears it might be on June 30, 1921, two millions or three millions, or abundantly sufficient to meet the demands upon it. There is nothing in Section 5 to the contrary.

I had always supposed, and Judge Matthias so holds in his opinion in the Zangerle case, that the emergency in fact, to be met by an emergency in law, must relate to an emergency existing when the law is proposed, and no such emergency is attempted to be stated.

The only emergency attempted to be stated relates to June 30, 1920, a year ago. There is no allegation here that there is no money to appropriate to pay the current expenses of the government. There is no allegation here that the administrative act will save the people a single dollar. In fact the act itself shows that the salaries of the heads of all the departments in the so-called “cabinet” under the “Administration Code” will be higher than they were under the former system. And there is no evidence in Section 5, nor even an averment in Section 5, that anybody’s salary is going to be reduced, that any expense is going to be lessened, or that there will be any actual bona fide saving to the state of Ohio. All that it says in that behalf is that it “would tend to conserve the present revenues,” a mere vague conclusion hardly sufficient as the foundation of an emergency.

So much for the fanciful and exaggerated construction of Section 5, whereby this court has read into it threatened bankruptcy. ?

In Judge Matthias’ opinion in the Zmgerle case, in which Judge Jones concurred, and all the other members of the court then on the bench, except Judge Donahue, regarding an exception to a general legislative policy, it was held that a special exception to a general legislative policy must be strictly construed.

Surely, too, a special exception to a general constitutional policy, the right of referendum, must be equally strictly construed. By a liberal rule of construction, yes, a fanciful, imaginative, exaggerated rule of construction, threatened bankruptcy and impending bolshevism are read into this Section 5 by this court.

It is hard to be patient or polite in the face of such flimsy and absurd statements by a court of last resort.

Again, the constitution placed its limitation upon the emergency law, confining it to an emergency of fact, suddenly and unexpectedly occasioned, in which the public peace, health and safety are suddenly and unexpectedly endangered, and the emergency law necessary therefor, immediately necessary, should go into “immediate effect” in order to “immediately preserve the public peace, health and safety.”

This limitation in the constitution to the “public peace, health and safety” has been by the majority extended to include public economy, public efficiency, public welfare. Judge-made law has long been under just condemnation. What will be said of judge-made constitution?

Two-thirds of Section 5, purporting to state the reasons for the necessity, having been discarded by the majority opinion as so much legislative junk, I maintain that it follows from the foregoing reasons that the remaining one-third is entitled as of right to the same classification.

If, however, Section 5, taken in conjunction with the whole act, by its four corners, fairly presented an emergency law suited to immediately preserve the state in respect to its peace, health or safety, as against a sudden and unexpected situation that is immediately dangerous in the constitutional respects mentioned, then I should regard the law as one which was required to go into “immediate effect’* in order to relieve against and guard against further dangers arising from the emergency in fact.

But taking the law by its four corners and surveying the whole of it, where is there anything that may be regarded as an emergency under the decision in the Zangerle case, and the opinion of Judge Matthias therein, defining emergency and applying it to the statute then involved?

The congress of the United States has appointed a committee upon ■ reorganization of the departments, with a view of increasing the efficiency and reducing the expenses of the government, and I have no doubt that the same can be effectively done and will result in the saving of many millions of dollars annually, that the committee will so report, and will directly assure the congress of the United States and the people of the nation that such saving will result from the proposed legislation. But would that constitute an emergency under our constitution? Everybody knows that this situation has been gradually growing. Just as Judge Matthias said in the Zangerle case touching roads out of repair, it is “a condition gradually created” and therefore expected and foreseen. No one administration is responsible for the whole of it. But that in no wise involves an emergency, as the law knows an emergency, as the public understands an emergency.

If, now, the next general assembly of Ohio shall be of a different political complexion, and commanding the necessary vote puts forth a new administrative bill, again reorganizing the various departments of state, abolishing the present offices, creating new ones with new titles, will that likewise constitute an emergency ? If the present “Administration Code” constitutes an emergency, succeeding legislatures will have little trouble in framing a law that will also meet the emergency provision of'the constitution as defined by the majority in this case, and we will have the state ripped fore and aft, from river to lake, from one administration to the next, and all the evils the people of Ohio have suffered from ripper legislation in the past will be renewed tenfold.

But the act itself shows that this is not an emergency by any possibility of construction. There is nothing sudden or unexpected to deal with here. At most, conditions that exist were due to negligence or indifference, or lack of proper efficiency and economy in the public service, running over a period of years.

The opinion of the four judges constituting the majority concludes with these words:

“Indulging the presumption in favor of the legislation, and in the absence of positive, judicial knowledge to the contrary, this court is bound to accept as true the reasons assigned by the legislature for making the act in question an emergency law.”

This is the only ground of agreement of the four majority judges in the rendition of this judgment, and, strange to say, it is the most unsound proposition discussed or suggested in the entire opinion. No rule of law is laid down for judicial review, which exists here only in name. I maintain that the rule of review is analogous, strongly analogous, to the review of special verdicts rendered by juries in connection with general verdicts. The jury corresponds to the general assembly; the general verdict corresponds to the general law holding that it is an emergency by going into immediate effect. Section 5 is the special verdict required by the constitution.

The rule is well settled that if the special verdict is contrary to the general verdict, the special verdict controls. Why? Because it makes special findings upon express and essential questions of fact upon which the final judgment must depend. This is an old rule of law, as old as our American jurisprudence.

It is not a question of fact now, it is a question of law. Are these two verdicts, the general verdiet and the special verdict, consistent with each other ? That is the question of law for this court to determine, but it is nowhere discussed in the opinion. The opinion simply says:

We are “'bound to accept as true the reasons assigned by the legislature.”

Section 5 in the first paragraph expressly shows that the general assembly did not set forth any “reasons for such necessity,”- but contented itself with this statement as to compliance with the constitution :

“The reasons for such necessity lie in facts, which two-thirds of all the members elected to each branch of the general assembly have considered, found and determined and which are separately set forth herein, as follows.”

The extent to which the majority opinion relies upon these facts has been already referred to in the majority opinion, and likewise in this dissent, but the reasoning upon those facts is neither attempted in Section 5, as required by the constitution, nor in the majority opinion.

The original form of the amendment called for “facts of necessity.” It was subsequently and significantly changed to “reasons for such necessity,” and no reasons appear in Section 5 by the most liberal interpretation.

Whether or not these facts, considered in their most favorable light, constitute “reasons for such necessity” is surely a legal question, yet the majority opinion says, we are “bound to accept as true the reasons assigned by the legislature,” when the record shows the legislature assigns no reasons, but merely gives these facts.

We are not bound to accept these facts in their relation to each other, or in relation to the public state of affairs, of which we as men have common knowledge, as contradicting that common knowledge, as contradicting our common experience in both private and public business, and in the use of exact, elementary English.

What we -commonly know as men we cannot unknow as judges. That common knowledge must square with our reasoning and its results. As men, we know that in all private business and public business, there is constant need of increased efficiency and increased economy, caused by conditions covering a period of years, slowly but surely created by the very machinery by which private or public business is conducted. The need for such higher efficiency or economy is like the poor, always with us. It is in no wise “a sudden or unexpected happening; an unforeseen occurrence or condition,” as was so aptly said in the Zangerle case, supra, and so wholly forgotten in this case.

As men, we know that in the language of the people, pertaining to their various lines of business, the words “efficiency” and “economy” never have been and never can be synonymous with “emergency.” Whether or not this act will result in any higher efficiency or economy in the public service is wholly beside the question, and can only be determined after a fair, practical operation, — and such is not an emergency. The basis of an emergency created by a one-million-dollar shrinkage in a fund is hardly substantial in a state where forty millions or more are appropriated annually for the expenses of government.

What a slander upon the fair name of Ohio!

The men who believed in the right of referendum, and who wrote it in the constitution, had no such intention. It was bitterly fought by those who opposed the principle and it was denominated as one of the “Follies of 1912.” But the opponents of the referendum lost in that convention. They lost at the polls. But what they lost then, they have temporarily won in this case.

The legislature by this decision can at any time, as the agent of the people, nullify and paralyze the will of their masters in the exercise of their legislative power under the constitutional right of referendum, and we are thus presented with the glaring and absurd situation of a public agent defying the public principal, tying its hands, denying its rights, nullifying its constitution, and exercising autocratic power thereunder. Further, the Ohio general assembly, when sanctioned by the supreme court of Ohio, will exercise all the supremacy of an English parliament, and the right of referendum becomes a -nullity.

This decision undermines the public confidence in the legislature, but it undermines tenfold more the public confidence in our courts. The decision should have been unanimous in favor of the people’s right of referendum upon the peopled law. I fear this is another Dred Scott decision.  