62 Ohio St. 3d 297 | Ohio | 1991
Lead Opinion
The sole issue before the court is whether the construction of for-profit, multiunit rental housing constitutes the construction of facilities for commerce or industry under Section 13, Article VIII, Ohio Constitution. The parties agree that if the proposed housing project meets the requirements of Section 13, the issuance of the bonds will meet constitutional muster, and the respondent auditor will be obligated to sign the bonds and affix his seal to them. For the reasons set forth below, we overrule State, ex rel. Brown, v. Beard (1976), 48 Ohio St.2d 290, 2 O.O.3d 438, 358 N.E.2d 569, and hold that construction of for-profit, multiunit, low- and moderate-income rental housing constitutes the construction of facilities for commerce and industry under Section 13. Accordingly, we hold that the proposed construction is a permissible project for which the relator board may issue bonds.
In Beard, we last addressed the issue of whether the construction of low- and moderate-income housing constituted commerce or industry as those terms are used in Section 13, Article VIII.
As the court of appeals correctly noted, Beard would dispose of the issue before us were we to allow it to stand. Much has transpired since our decision in Beard, and we now review that opinion with the benefit of fifteen years of experience and hindsight. Although we are reluctant to overturn well-established precedent, we are less so in the face of precedent wanting in reason and justification. As Justice Holmes succinctly stated in his concurring opinion in Scott v. News-Herald (1986), 25 Ohio St.3d 243, 254, 25 OBR 302, 311, 496 N.E.2d 699, 709:
“ * * * It does no violence to the legal doctrine of stare decisis to right that which is clearly wrong. It serves no valid public purpose to allow incorrect opinions to remain in the body of our law. * * *”
We now see that Beard, with its conclusory language and its focus on construction activities rather than the postconstruction use of the housing units, was inartfully, if not wrongly, decided.
We begin our analysis with a consideration of what the legislature intended to include in the constitutional categories of commerce and industry when Section 13 was submitted to the voters for their subsequent approval. A longstanding rule of construction mandates that we consider the common and ordinary meaning of the terms contained within our Constitution in order to interpret them properly. Cleveland Tel. Co. v. Cleveland (1918), 98 Ohio St. 358, 368-369, 121 N.E. 701, 704.
In State, ex rel. Bd. of Commrs. of Preble Cty., v. Mong (1984), 12 Ohio St.3d 66, 12 . OBR 56, 465 N.E.2d 428, we turned to the lexicographers for assistance in defining the common and ordinary meanings of the terms “commerce”, and “industry.” In holding that farming constituted commerce and industry under Section 13, we relied upon the generally accepted definitions of “commerce” as “the buying and selling of goods” and “industry” as “the commercial production of goods.” Id. at 67, 12 OBR at 57, 465 N.E.2d at 429, citing The American Heritage Dictionary (1979) 266, 672, and Webster’s New World Dictionary (2 Ed. 1982) 285, 719. Today, we look to the broader definitions of those terms to include the service industries that for some time
In adopting those definitions, we conclude that relators’ proposed project would constitute the construction of facilities for industry and commerce under Section 13. The exchange of money for possessory interests in the rental units certainly constitutes “commerce” as that term is commonly used and has been defined. Furthermore, the commercial service of providing and maintaining rental housing constitutes a service industry that would be promoted by the issuance of the bonds in question.
Our view that the rental industry is commerce is certainly consistent with our prior decision in Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 12 OBR 6, 465 N.E.2d 421. In Roosevelt, we considered the question of whether a multiunit commercial apartment complex constituted residential property for the purposes of a tax reduction factor that was available only to owners of residential property. In holding that the multiunit complexes at issue were not residential, we relied upon our view that the owner’s use of the apartments was “singularly commercial in nature,” id. at 12, 12 OBR at 10, 465 N.E.2d at 426, and that such properties are “utilized in a business or commercial capacity.” Id. at 13, 12 OBR at 11, 465 N.E.2d at 426. For similar reasons we view relators’ proposed construction project as unequivocally commercial and industrial in nature.
We find it difficult, however, to draw such conclusions, for “this court places little weight on legislative [or in this case, electoral] inaction as a barometer for determining legislative intent.” Roosevelt, supra, 12 Ohio St.3d at 10-11, 12 OBR at 9, 465 N.E.2d at 425. For the past fifteen years, the people of this state have been led to believe by our pronouncement in Beard that the rental industry does not meet Section 13’s requirements. Through the adoption of Sections 14 and 16, the people of Ohio have indicated that the construction of rental housing is in the public interest and a proper public purpose, and they have begun, in a piecemeal fashion, to address the restrictions imposed by Beard.
We cannot now assume that the people would have amended the Constitution in the same manner had Beard not arisen. Nor can we assume that their incremental process of overturning Beard by referendum would have stopped with the passage of Sections 14 and 16. We can only assume that had we decided Beard properly in 1976, the thrust of Sections 14 and 16 might have been different.
Accordingly, we reverse the decision of the court of appeals and reinstate the judgment of the trial court and its issuance of a writ of mandamus.
Judgment reversed.
. In Beard, we referred to the housing project therein as the construction of “moderate and low cost housing.” Our reference to low- and moderate-income housing is meant to be synonymous with the terms used in Beard.
. See, also, Miami Cty. v. Dayton (1915), 92 Ohio St. 215, 110 N.E. 726 (applying rules of statutory construction in construing a constitutional provision); cf. R.C. 1.42 (terms in statutes are to be interpreted according to their “common usage”).
. This definition of commerce is consistent with the United States Supreme Court’s use of the term in a different context. In determining the applicability of the Sherman Act to legal services, the Supreme Court held that “the examination of a land title is a service, [and] the exchange of such a service for money is ‘commerce’ in the most common usage of that word. * * *” Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 787-788, 95 S.Ct. 2004, 2013, 44 L.Ed.2d 572, 585. Analogously, the provision of rental housing is a service, and the exchange of that service for rent is commerce. See, also, Stark Cty. v. Ferguson (1981), 2 Ohio App.3d 72, 75-76, 2 OBR 81, 84, 440 N.E.2d 816, 820 (construing commerce under Section 13 as incorporating an office building for physicians, dentists, a medical laboratory and a public pharmacy).
. We choose not to travel down the path we took in Beard and do not consider whether the construction itself constitutes the construction of a facility for commerce and industry. Our reading of the statute focuses instead on the activities that will occur once construction is completed rather than those occurring during the construction itself.
. This is not to suggest that our decision today would render either of these provisions moot, because we are here concerned with the construction of multiunit, low- and moderate-income housing where a profitable exchange of rent money for services takes place. Any other facility that does not share these attributes would not necessarily fall within the narrow scope of this decision or the provisions of Section 13. The authority to issue bonds for such projects would likely have to arise under Sections 14 and 16.
Dissenting Opinion
dissenting. I respectfully dissent. Section 6, Article VIII of the Ohio Constitution prohibits political subdivisions from issuing bonds in aid of private enterprise, and the project at issue does not fall within the exceptions to Section 6 found in Section 13, Article VIII.
Section 13, Article VIII of the Ohio Constitution authorizes the state and its political subdivisions to issue bonds for construction of property for specifically enumerated purposes. Section 13 does not authorize bonds for the construction of a housing complex such as that attempted by appellants. This was the holding in State, ex rel. Brown, v. Beard (1976), 48 Ohio St.2d 290, 2 O.O.3d 438, 358 N.E.2d 569, the case which the majority overrules. The majority holds that Beard was incorrectly decided because the General Assembly actually intended to include bonds for for-profit, multiunit, low- and moderate-income housing when Section 13 was submitted to the voters for ratification. Such an analysis is unnecessary when, as in this case, a statute or constitutional provision is not ambiguous. Yet, the majority looks beyond the wording of Section 13 and concludes that the common usage of the words “commerce” and “industry” and the history of constitutional amendments over the last fifteen years demonstrate a desire for a broader interpretation of Section 13.
In addition to the fact that the question is answered by the plain language of Section 13 and the Beard decision, a review of the constitutional history reveals no intent to broaden the activities for which political subdivisions may provide funds by the issuance of bonds.
The majority suggests that “[tjhrough the adoption of Sections 14 and 16, the people of Ohio have indicated that the construction of rental housing is in the public interest and a proper public purpose * * *.” That may be, but the people did not determine that such public interest includes the issuance of bonds by a board of county commissioners for the purpose of constructing low- and moderate-income rental housing. The majority misinterprets the implication of these amendments to Article VIII. As this court stated in State, ex rel. Engle, v. Indus. Comm. (1944), 142 Ohio St. 425, 432, 27 O.O. 370, 373, 52 N.E.2d 743, 747:
“The general rule as to the interpretation of constitutional amendments may be stated thus: The body enacting the amendment will be presumed to have had in mind existing constitutional or statutory provisions and their judicial construction, touching the subject dealt with.”
“Since that decision, the General Assembly has met many times. These sections have been amended, and in 1943 the school code was completely recodified, and yet the General Assembly has not seen fit to change this particular phraseology.
“Bearing in mind that a legislative body in enacting amendments is presumed to have in mind prior judicial constructions of the section, we reach the inescapable conclusion that the General Assembly intended that only one school district could be transferred in a single resolution.”
The court’s analysis in Huron is equally applicable where the General Assembly places on the ballot amendments to the Ohio Constitution. Since the Beard decision in 1976, Article VIII has been amended to include Sections 14 and 16. In 1977 and 1980, the voters rejected two ballot proposals that would have permitted the state and political subdivisions to make loans to private, for-profit borrowers to provide multiunit rental housing for low- and moderate-income persons. See Am.Sub.H. Joint Resolution No. 18, 137 Ohio Laws, Part II, 4050, and Am.Sub.H. Joint Resolution No. 60, 138 Ohio Laws, Part II, 4979.
Neither of those adopted amendments authorizes a county to issue bonds to construct low- or moderate-income housing projects. However, the rejected amendments would have authorized such projects. Thus, when the General Assembly intended to give such authority to counties, it expressly stated its intent.
The adoption of constitutional amendments which allow specific exceptions to Section 6, Article VIII does not show intent by the public or the General Assembly to broaden the scope of Section 13 to allow the issuance of bonds by political subdivisions of the state for low- or moderate-income housing projects. This type of assertion has previously been rejected by this court in Lynn v. Supple (1957), 166 Ohio St. 154, 1 O.O.2d 405, 140 N.E.2d 555. The
“Relator argues that the foregoing authorities should no longer be followed because of the subsequent enactment in 1941 of Section 4785-177», General Code (now Section 3519.11, Revised Code), specifically providing for withdrawal of names from referendum petitions relating to statutes in certain instances and because of the failure of the General Assembly to enact a similar provision relating to municipal referendums.
“There might be some force to such an argument if the statutes relating to municipal referendums had not been previously enacted, and also if they had not been previously construed by this court as permitting the withdrawal of names of signers. However, we do not believe that we can imply an intention of the General Assembly to provide against withdrawal of names of signers from a municipal referendum petition merely because it made no provision for such withdrawal at a time when it was providing for such withdrawal with respect to state referendum petitions, especially when it was not then legislating relative to municipal referendum petitions. If, by what it does, the General Assembly intends in effect to change the law as previously announced by this court, it should express such an intention. Such an intention will not ordinarily if ever be implied from its silence.” Id. at 159, 1 O.O.2d at 408, 140 N.E.2d at 559.
For the foregoing reasons, I would affirm the judgment of the court of appeals.
