160 N.E. 902 | Ohio | 1928
The city of Columbus brought suit against the board of education of the city school district of Columbus, Ohio, to recover charges for water service rendered by the municipal plant to the public school buildings within the city of Columbus. The board of education defended on the ground that Section 3963, General Code, exempts boards of education from such charges. That section provides in part:
"No charge shall be made by a city or village, or by the waterworks department thereof, for supplying water for extinguishing fire * * * or for the use of the public school buildings in such city or village."
The controversy is in every essential detail identical with the case of City of East Cleveland v. Board of Education ofCity School District of East Cleveland,
"No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void."
In the East Cleveland case, the lower courts had *297 declared Section 3963 to be constitutional, and two members of this court were empowered to affirm that judgment over the dissent of the other five. In the instant case, the situation is reversed, the lower courts having declared the statute unconstitutional and void, and a majority of the court have power to affirm that judgment. The several members of this court entertain their respective views upon the legal questions involved, as expressed in the opinions published in that case, and the dissenting opinion in that case becomes the reasons of the five members of this court in support of the judgment of affirmance of the judgment in the instant case, and that opinion will therefore be adopted by reference and without repetition. This opinion might well close at this point, but it is believed that a service may be rendered by calling attention to the deplorable situation which has grown out of the practical operation of the aforesaid constitutional provision.
After the decision of the East Cleveland case, the city of East Cleveland, being dissatisfied with the minority judgment of this court, brought another action in the hope of finding a Court of Appeals more favorable to its views. It succeeded in having the second case submitted to the Court of Appeals of the Ninth district. The judges of the Ninth district were unanimous in reaching the same conclusion as the judges of the Eighth district in the former case, and therefore the same conclusion of the two judges of this court in the case reported in
"In the very nature of superior and inferior courts, the latter should follow adjudicated cases by the higher court when the judgment of the higher court rests upon the concurrence of a majority of the judges, but we are of opinion that where the judgment of the Supreme Court rests upon the concurrence of less than a majority that such judgment is binding only in that particular case as an adjudication, but is not binding in other cases under the rule of stare decisis."
In the course of that opinion, the Court of Appeals further stated that it did not determine the case upon the authority of either of the opinions in the East Cleveland case, but upon its own judgment found Section 3963 to be unconstitutional.
It has always been recognized as a sound theory that the most important function of courts of last resort is to render uniform the conflicting decisions *299
of inferior tribunals within the jurisdiction of such courts, but the practical operation of this theory is destroyed in the state of Ohio, so far as the constitutionality of statutes and ordinances is concerned, by the constitutional provisions above referred to. The best possible illustration of that fact is found in the decision of the instant case and the decision of the East Cleveland case. In the Second Appellate District, Section 3963 is unconstitutional and void, and must be so treated by all the municipalities of that district. In the Eighth and Ninth Appellate Districts the statute is valid, and must be so administered. In the other six appellate districts, municipalities may not know whether that section is valid and applicable to municipalities within their jurisdictions until the question has been submitted to the various Courts of Appeals of those districts, but all municipalities in those districts may be assured that whatever judgments are rendered by their respective Courts of Appeals will be affirmed by this court until such time as either the constitutional provision is abrogated or changes occur in the personnel of this court. It would be difficult to describe or even imagine a more deplorable situation. That the Court of Appeals in the instant case was justified in disregarding the former decision of this court rendered by two judges finds authoritative sanction in the case of Hertz v. Woodman,
"The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a *300 question once decided. The court below in this instance, when called upon to reconsider its former construction of the inheritance tax act, found itself confronted by the fact that this court had been equally divided in opinion as to the proper interpretation of the act, and for that reason alone obliged to affirm the ruling of that and other courts against the legality of the tax which had been collected. If the decision of the court under review had been in favor of the legality of the tax an affirmance must likewise have resulted from an equal division. That court also found that its own former view of the act had not been satisfactory to the Circuit Court of Appeals for the Eighth Circuit, which court had decided contrarywise inWesthus v. Union Trust Co., 164 Fed. 795. In such circumstances the court below was not only free to regard the question as one open for determination, but one which might well be certified to this court, that the question of law which had never been authoritatively decided by this court might be so determined by an instruction as to how it should decide the matter when thus presented for reconsideration."
In the opinion, which was written by Mr. Justice Lurton, the following earlier cases were cited and commented upon, all of which had stated similar propositions: Etting v. Bank of U.S., 24 U.S. (11 Wheat.), 59, 78,
Manifestly, if a decision rendered by a court evenly divided is not an authoritative precedent establishing a legal proposition, the Court of Appeals in the instant case was fully justified in not feeling *301 bound by a decision rendered by two members of this court, where the other five members entertained an opposite opinion.
As reflecting upon the extent of the evil which has grown out of the constitutional amendment of 1912, above referred to, it will be profitable to note the other cases decided by this court by the concurrence of a minority of its members.
On April 2, 1918, the case of Barker et al., County Commrs., v. City of Akron,
In the case of Morton v. State,
"However, since there are not five of my associates who concur with me in this view, the act as enacted cannot be declared unconstitutional, and therefore must be recognized by me, as by all other persons, as an enforceable act of the Legislature."
In State, ex rel. Williams, v. Industrial Comm.,
In the case of Fullwood v. City of Canton,
In Meyers v. Copeland,
In State, ex rel. Jones, v. Zangerle,
This rather elaborate review of the former decisions of this court, each of which has been rendered by a minority of its judges, is made at this time, because, while it places this court in an unenviable, *305 not to say ridiculous, light before courts and lawyers of other states, it also clearly illustrates that the fault lies with the constitutional provision and the impractical results of its inevitable operation, and not through the fault of this court or any of its members. Manifestly, each and every member of this court must decide each and every proposition before the court according to his own individual judgment and conscience. If it results that decisions are rendered by a minority of the court, and if it further results that certain laws and ordinances are valid and constitutional in certain jurisdictions, and unconstitutional and void in other jurisdictions within the state, such results must continue so long as this provision remains in the Constitution.
Without questioning the motives of the Constitutional Convention of 1912 in submitting this constitutional amendment, and without criticizing the electorate of the state in approving it, it has become apparent that the purposes which were in the minds of the constitutional convention and of the electorate have not been served. If it was intended to strengthen the legislative branch of the government, and relatively weaken the judicial branch, that intent has likewise failed. While the constitutional provision has taken from the Supreme Court the power to declare a legislative act to be unconstitutional by a bare majority vote, it has left an unlimited power so to do in the Court of Appeals. Manifestly, the Constitutional Convention did not desire to invest more power in the intermediate courts than was invested in the court of last resort, and yet, in practice, as shown in the instant case, the Court of Appeals has become the final arbiter of constitutional questions in many important cases. *306
Attention should also be called to the inconsistency of this provision when compared with other provisions in the same section of the Constitution. In an earlier portion of that section we find the following:
"It [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in all cases involving questions arising under the constitution of the United States or of this state * * *."
It will thus be seen that the same Constitutional Convention, and in the same section of its proposed amendment, safeguarded the rights of litigants to have all cases finally decided by the Supreme Court of the state, where such cases involved questions arising under the Constitution of the United States or of this state. It was wholly inconsistent, therefore, to thus safeguard constitutional questions against final decision in the lower courts, and then incorporate into the same section a provision which in its practical operation has made the Court of Appeals the final arbiter upon the most important constitutional questions coming before the courts.
As a further illustration of the impractical operation of this constitutional provision, it may be pointed out that a cause originating in the probate court might involve the constitutionality of a statute, and the statute might be declared unconstitutional by the probate court, the Common Pleas Court on error, and by one of the judges of the Court of Appeals, and by five judges of the Supreme Court, a total of eight judges, and yet the statute would be held to be constitutional by the concurrence of *307 two judges of the Court of Appeals, declaring its constitutionality, and affirmed by two judges of the Supreme Court, a total of four.
This amendment to the Ohio Constitution is without a parallel in any state in the Union, and is violative of the basic principle of popular government, which must always rest upon the loyal acceptance of majority rule. In a few matters of superimportance, it is required in legislative bodies that a conclusion can only be reached by a two-thirds majority, and in some instances a three-fourths majority is required. In no other instance in any of the three branches of government is it provided that a conclusion can be reached by less than a majority. The effect of this constitutional amendment is to give greater force and effect to the opinion of two members of the court than to the other five.
The judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
ALLEN, KINKADE, ROBINSON and MATTHIAS, JJ., concur.