191 N.E. 366 | Ohio | 1934
On April 11, 1934, in a former hearing of this case (ante, 343) this court affirmed the judgment of the Court of Appeals, and held in effect that the purchase ordinance of the village, and its transactions thereunder, violated Section 6, Article VIII of the state Constitution. The motion to vacate which is now filed is grounded upon the legal contention that since but five judges concurred in a judgment holding the village ordinance to be unconstitutional (two judges not participating), the former judgment is ineffective to declare the ordinance void, because the court is inhibited from so doing by reason of Section 2, Article IV of the state Constitution. That section reads in part as follows: "No law shall be held unconstitutional *355 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."
The gravamen of the claim of plaintiffs in error is that under the quoted provision the term "law" should be so construed as to include municipal ordinances and should not be so narrowly interpreted as to comprehend legislative enactments only. In their brief counsel for plaintiffs in error state the question presented as follows: "The fundamental question thus raised by the present decision of five judges as to whether ordinances are 'laws' within the meaning of Section
This phase of the case — whether it requires six members of the court to declare an ordinance unconstitutional — has given some tribulation to this court, as shown by the journal entries in the following cases: In Fullwood v. City of Canton,
Viewed in the light of its historical effect upon our state jurisprudence, disclosed in the various cases decided by this court, and cited in Board of Education of City School Districtof Columbus v. City of Columbus,
Does the term "law," found in Section 2, Article IV, comprehend municipal ordinances, and therefore require the concurrence of all but one of our judges in declaring a law unconstitutional? The term "law" permeates the amendments of the Constitution adopted in 1912. It is often used in repeated phrases, such as "Laws may be passed to secure to mechanics" etc.; "Laws may be passed fixing and regulating the hours of labor" etc.; "Laws may be passed for the purpose of providing compensation to workmen" etc.; "Laws may be passed to encourage forestry" etc.; "Laws may be passed providing for the prompt removal from office" etc.; and throughout the entire constitutional amendments then adopted we find frequent repetition of these phrases, disclosing that it was the unquestionable intention of the Constitution makers to apply the term "laws" to legislative enactments only, and not to municipal ordinances. That this particular provision of Section 2, Article IV, was likewise intended to apply to statute law and not to local municipal laws is shown beyond peradventure by the action of the Constitutional Convention in sending its explanation defining the term "law" to the electors of the state for use in the following election. Near the close of the Convention it adopted a resolution providing that a facsimile of the ballot, with the text of each amendment, accompanied by explanatory matter authorized by the Convention, should be furnished to the people. *358 The text of Section 2, Article IV, here under consideration, provided that "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." The explanation accompanying the text defined the term "law" in the following language: "Cases involving constitutional questions may be carried directly from the court of appeals to the supreme court, but the latter cannot reverse the former and hold a statute unconstitutional if more than one of its judges object, but a judgment of the court below holding a statute unconstitutional, may be affirmed by a majority of the supreme court." The language employed in the explanation clearly demonstrates that the text of the constitutional provision was intended to comprehend statute law and not municipal law or ordinances. Giving the construction that the Constitution makers intended should be given, it follows that an ordinance of a municipality is not a law within the meaning of Section 2, Article IV, requiring the concurrence of at least all but one of the judges to declare it unconstitutional and void. For the reasons stated the motion to vacate the judgment heretofore rendered will be overruled.
Motion overruled.
WEYGANDT, C.J., STEPHENSON, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur *359