author: Wanamaker, J.

text:
    The Baltimore & Ohio Railroad Co. v. Armstrong, Lee & Co.

      Railroads — Special contracts not per se void, when> — Agreement to convey shipment beyond Hood danger — Pleading — Contract, tort or conversion.

    A special contract between a common carrier and a shipper, made in view of an unusual flood, for the immediate and necessary removal of perishable goods beyond the reach of the flood, is not per se void unless its terms are unjust, unreasonable or discriminatory in their nature or in their operation.
    (No. 15865
    Decided February 11, 1919.)
    Error to the Court of Appeals of Muskingum county.
    On the 23d day of August, 1913, Armstrong, Lee & Company filed their petition in the court of common pleas of Muskingum county, averring that they delivered to The Baltimore & Ohio Railroad Company at their grain elevator, at Zanesville, Ohio, two thousand one hundred and sixty-eight and one-third bushels of wheat, in two cars, with the agreement and understanding that the railroad company was “to safely and immediately transport and deliver same over its railroad to high ground out of reach of water,” and averring that “the said defendant then and there received same and agreed to safely transport and deliver same to plaintiff on' and at high ground out of reach of water for said hire; that said defendant at the time of receipt and agreement • aforesaid, knew the contents of said car and that same was in danger of inundation at point where shipment was made.”

      The petition further averred that “said defendant did not safely or immediately transport said wheat to said high ground, as it agreed to do, but on the contrary, said defendant, after receiving said shipment and removing same from the custody and control of plaintiff, wrongfully, recklessly and negligently delayed the forwarding of same to said high ground, and wrongfully, recklessly and negligently permitted said car to become so situated,” in the flooded districts of Zanesville,that said wheat became and was of “no value and wholly worthless.” Damages were asked in the amount of $2201.44.
    Defendant answered by a first defense constituting a general denial with many admitted facts; a second defense averring in substance that said wheat was caught in an unusual flood of water and was so badly damaged as to render it worthless by said unusual flood, and not- by any default, negligence or misconduct on the part of the defendant; and a third defense in substance that “under the laws of Ohio regulating intra-state commerce, the defendant is prohibited from making or entering into any contract for the shipment of freight not provided for or authorized by its published tariffs; * * * that the contract or agreement alleged in each of the causes of action in the petition herein was not authorized or provided for by defendant’s said tariffs or schedules, and that said alleged contracts or agreements were illegal, null and void and in violation of Sections 505, 506, 508, 510, 513 and 564 and 567 of the General Code of Ohio.”

      Upon trial to a jury in the court of common pleas a verdict was rendered' against the railroad company for the full amount, and judgment entered on the verdict.
    Error was prosecuted to the court of appeals, which affirmed the judgment of the court of common pleas.
    Error is now prosecuted here for the reversal of the judgment of the court of appeals.

      Messrs. Frasier & Frasier, for plaintiff in error.

      Mr. C. T. Marshall, for defendant in error.
   Wanamaker, J.

Plaintiff below claims that the action is one for wrongful conversion of wheat,' and that such a case is not only pleaded but abundantly proven under the evidence.

The Constitution of Ohio, in its Bill of Rights, Section 16, says:

“All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law,” etc.

The record overwhelmingly discloses, and it is admitted in the pleadings, that these two carloads of wheat were lost, at least in value, while in the custody of the railroad company and while on its tracks ,* that prior thereto it had removed the wheat from the siding at the milling company’s elevator to another point on the railroad company’s line. The question of negligence on the part of the railroad company was submitted to the jury, under proper instructions of the court, and if the petition stated a cause of action the verdict of the jury was abundantly warranted.

Did the petition state a cause of action?

The petition does aver that “plaintiff delivered to the defendant on board cars” the wheat in question, and that while the same remained in the possession of the railroad company it was made wholly worthless and of no value whatsoever, and that this was by reason of the negligence of the railroad company in respect to handling said cars. The language of the pleading, and the evidence as well, indicate that a contract was made between the railroad company and the milling company touching the handling of said cars and their removal to a place of safety.

Now, it is well settled law, that is elementary, that though one have a contract, if there has been negligence in the performance of that contract, he may sue in tort, or for conversion, and claim his damages upon proper proof. And that was done in this case.

The code of Ohio was clearly intended to abolish common-law distinctions and technicalities as to the manner of stating the various causes of action in tort or contract, and otherwise. The cause was designated as a civil action, and the pleader had a good petition when he put in it:

1. A statement of facts constituting the cause of action, in ordinary and concise language.

2. A demand for the relief to which the plaintiff claims to be entitled.

Hence, in such cases as the one at bar at least, it becomes unimportant to undertake to classify the action as one strictly in contract or strictly in tort.

The evidence clearly supports, the claim that the railroad company came into possession of these cars at two or three o’clock in the afternoon, when they were still in good merchantable condition; that they were removed by the railroad company to some other point, not entirely clear by the record, but in the flood district; and the jury below, and the courts below, found that the above was negligence on the part of the railroad company.

As to the third defense, that the agreement pleaded was in violation of certain sections of the General Code of Ohio, we have already declared the elementary law as to pleading upon contracts, that the party may sue in tort for negligence of the other party in failing to observe due care with reference to his bailment. But even if the party in his petition had declared upon special contract, we see nothing in this contract in violation of these sections. These sections' relate to the duties of a common carrier, and their purpose is to prevent discrimination between different members of the public as to charges for services as a common carrier. The service in this case was not as a common carrier, but as an uncommon carrier, in an uncommon situation, an emergency under uncommon circumstances, for which the milling company was liable for a reasonable and just charge.

.But even as to a special contract between the carrier and the shipper, such special contract is not per se void, unless it exhibits an unjust and unreasonable charge discriminatory in its nature. No claim of this character is made in this case.

It is likewise unimportant in this case to determine whether the railroad company acted as a common carrier or otherwise. The facts pleaded and proven abundantly justify the recovery.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson and Donahue, JJ., concur.

Robinson, J., not participating.


source: Caselaw Access Project

author: Johnson, J. Matthias, J., Wanamaker, J., Donahue, J.,

license: Public Domain

text:
    The State, ex rel. Greenlund, v. Fulton, Secretary of State.

      Constitutional amendments — Initiated petition and contents — Section la, Article II, Constitution, 1912 — Secretary of state to submit exact proposal — Constitutional requirements mandatory, when — Arguments, explanations, preparation of ballots, etc.— Taxation — Classification and exemption of property.

    1. The filing of a petition signed by ten per cent, of the electors proposing an amendment to the constitution, the full text of which shall have been set forth in such petition, as required by Section la, Article II of the Constitution, is jurisdictional; and is a necessary prerequisite to the submission of the proposed amendment for the approval or rejection of the electors.
    2. When such a petition, signed and prepared in accordance with the constitutional requirement, has been filed with the secretary of state, he is required to submit to the electors the exact proposal as set forth in the petition, and there is no authority for the submission of any other or different one.
    3. The provisions of Section la et seq., Article II of the Constitution, for the filing of petitions for proposed amendments to the constitution, for copies, arguments and explanations thereof, and for preparation of ballots so as to permit an affirmative or negative vote upon each law, section of law or proposed law, or proposed amendment to the constitution, are mandatory. A submission of a proposed amendment to the constitution without substantial compliance with the provisions of the sections of the constitution referred to is invalid.
    (No. 16171
    Decided January 28, 1919.)
    In Mandamus.
    This is an original bill in mandamus which seeks to procure a writ commanding the secretary of state to publish an amendment to the constitution, which it alleges was approved by a maj'ority of the electors voting thereon at the election in November, 1918, the full text of which proposed amendment was as follows :
    “Be It Resolved, By the people of the State of Ohio: That Section 2 of Article XII of the Constitution of the State of Ohio be amended to read as follows:
    “The General Assembly shall provide for the raising of revenues for all state and local purposes in such manner as it shall deem proper. The subjects of taxation for state and local purposes shall be classified, and the rate of taxation shall be uniform on all subjects of the same class, and shall be just to the subject taxed; excepting all bonds outstanding on the first day of January, 1913, of the State of Ohio, or of any city, village, hamlet, county, or township in this state or which have been issued in behalf of the public schools in Ohio and the means of instruction in connection therewith, which bonds outstanding on the first day of January, 1913, shall be exempt from taxation; but burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, and personal property, to an amount not exceeding in value five hundred dollars, for each individual, may, by general laws, be exempted from taxation; but all such laws shall be subject to alteration or repeal; and the value of all property so exempted, shall, from time to time, be ascertained and published as may be directed by law.”
    The bill further alleges that defendant refuses to publish the same, by reason of which great confusion has arisen in the public mind and in the general assembly as to whether or not the said amendment is a part of the constitution.
    The answer of the defendant admits the submission of the proposed amendment, as in the petition alleged. It avers that the vote on the proposition was Yes 336,616, No 304,399. It admits that the defendant has not published said amendment as an amendment to the constitution, and denies all the other allegations in the petition.
    It further alleges that at the same election in November, 1918, at which the proposal set out in the plaintiff's petition was voted on, there was also submitted to the electors of the state, for their approval or rejection, a proposal to amend Section 2 of Article XII of the Constitution of Ohio to read as follows:
    “Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, and also all real and personal property according to its true value in money, excepting all bonds outstanding on the first day of January, 1913, of the state of Ohio or of any city, village, hamlet, county, or township in this state or which have been issued in behalf of the public schools in Ohio and by the means of instruction in connection therewith, which bonds outstanding on the first day of January, 1913, shall be exempt from taxation but burying grounds, public school houses, houses used exclusively for public worship; institutions used exclusively for charitable purposes, public property used exclusively for any public purpose, and personal property, to an amount not exceeding in value five hundred dollars, for each individual, may, by general laws, be exempted from taxation; and laws may be passed to provide against the double taxation that results from the taxation of both the real estate and the mortgage or the debt secured thereby, or other lien upon it, but all such laws shall be subject to alteration or repeal; and the value of all property so exempted, shall, from time to time, be ascertained and published as may be directed by law.”
    It alleges that said proposed amendment to the constitution was submitted under authority of House Joint Resolution No. 34, adopted by the general assembly March 21, 1917: that the vote on said last above proposed amendment was as follows: Yes 479,420, No 371,176. It denies that there is any duty incumbent upon him to publish said amendment as prayed for in the relator’s petition.
    For reply the relator admitted the submission of the proposal set forth in the answer, as alleged therein, and that the vote on the proposition referred to in the petition and that referred to in the answer was as set out in the answer.
    And for further reply relator says that the ballots used for the submission of the proposal referred to in the petition were in the following form:
    ARTICLE XII, Section 2

    The ballots used for the submission of the proposal referred to in the answer were in the fol-„ lowing form:

      The case was submitted on the pleadings and a stipulation and agi-eement of the parties.

      Mr. Judson Harmon and Mr. Clarence D. Laylin, for 'relator.

      Mr. Saul Zielonka, city solicitor of Cincinnati; Mr. Rufus B. Smith; Mr. Frank Davis, Jr., and Mr. William B. Sanders, amici curiae.

      Mr. Joseph McGhee, attorney general; Mr. L. D. Johnson; Mr. P. E. Dempsey and Mr. W. B. Stevens, for defendant.
   Johnson, J.

Section lb of Article II of the Constitution contains the following provision:

“If conflicting proposed laws or conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes shall be the law, or in the case of amendments to the constitution shall be the amendment to the constitution.”

This provision is included in the section relating to initiated proposed amendments. Its terms are clearly applicable to proposals by the general assembly as well as by the initiative. Every reason for the provision as to conflicting proposed amendments which are initiated applies with equal force to amendments proposed by the general assembly which conflict with others submitted at the same election. And as its terms are general and comprehensive, we think it is evident that the constitutional convention did not regard its repetition as necessary.

The defendant secretary contends that the two proposed amendments set out in the pleadings, voted upon at the election in November, 1918, conflict with each other, and that, therefore, the proposal set up in the answer, having received 479,420 votes, and the amendment set up in the petition, known as the “Classification Amendment,” having received 336,616 votes, the former, under the provision of the constitution above quoted, “shall be the amendment to the constitution.”

The relator, while admitting that the proposed amendment submitted under the joint resolution of the general assembly received the larger number of votes, yet contends that the proposed amendment set up in the petition, the Classification Amendment, does not conflict with the former. The basis of this argument is that although both of the proposed amendments contain the full text of the section of the constitution to which they both related and which they both amended, Section 2 of Article XII, yet the action of the people only related to the changes made. This necessarily proceeds upon the idea that the people took no note of any effect which the proposed change might make in the existing constitution or of its relation to the already established organic law. However, the full text of Section 2, Article XII, as it would read after the proposed amendment or change had been made in it, was set forth in each proposal, and in each case such complete full text was published to the people in the manner required by the constitution as the proposal upon which they were to vote at the election.

By the original Section 2, Article XII, it is provided that all property shall be taxed by a uniform rule at its true value in money. By the proposed classification amendment it is provided that the subjects of taxation shall be classified, and the rate of taxation shall be uniform on all subjects of the same class, and shall be just to the subject taxed. Of course it is conceded that there is a direct conflict in these two constitutional provisions, and it is conceded that if the approval by the people of the proposal by the general assembly operated to readopt original Section 2, Article XII, it received a very much larger vote than the classification amendment, and that the latter would fail.

But it is insisted that the people did not reaffirm or readopt the provisions of Section 2, Article XII, which were not changed by the proposals, and authorities are cited-by counsel in the briefs and at the bar. These authorities relate to the construction of statutes and to their effect upon rights and transactions between the original and amendatory acts. It is urged that these, authorities, and the rules they declare, apply also in the construction of constitutional provisions. This court has recognized and applied that rule. The County of Miami et al. v. The City of Dayton et al., 92 Ohio St., 215, 223, and Shryock v. The City of Zanesville et al., 92 Ohio St., 375, 383.

In State, ex rel. Durr, Auditor, v. Spiegel et al., Budget Commissioners, 91 Ohio St., 13, cited, it is held:

“Where an amendatory act contains the entire section or sections as amended and repeals the original section or sections in compliance with Section 16, Article II of the Constitution, the amended sections are to be given the meaning they would have had if they had read from the beginning as they do as amended, except where such construction would be inconsistent with the manifest intent of the legislature.

“An act amending one or more sections of a statute should be considered in connection with the whole statute of which it has become a part, the object intended to be accomplished by the law, the imperfections to be removed and the changes to be made by the amendment.”

In 1 Sutherland’s Statutory Construction (2 ed.), Section 237, it is said: “So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that" the mere nominal re-enactment should have the effect of disturbing the whole body of statutes in pari materia which had been passed since the first enactment.”

In McKibben v. Lester, 9 Ohio St., 627, it is held: “Where one or more sections of a statute are amended by a new act, and the amendatory act contains the entire section or sections amended, and repeals the section or sections so amended, the section or sections as amended must be construed as though introduced into the place of the repealed section or sections in the original act, and, therefore, in view of the provisions of the original act, as it stands after the amendatory sections are so introduced.”

These authorities sufficiently sustain the proposition stated, and the questions to which they relate are obvious. The time at which a statute became effective is frequently important to litigants and contracting parties, and unintentional injustice would result, if, in particular circumstances, the taking effect of an amendment in matters as to which the statute was not changed should be held to change the application of the law as to rights which had attached before the amendment. Such for instance as the words “heretofore” or “hereafter,” found in an original act and contained in an amendatory act which had changed the original in other respects than those to which these words related. This was the question presented in Durr v. Spiegel, supra. But while these are salutary rules as to the effect of such amendments, yet they have no relation to the actual fact of the reenactment of the original section as amended. So far as Ohio is concerned, the constitution itself settles that question. Article II, Section 16, provides: “No law shall be revived, or amended unless the new act contains the entire act revived, or the section or sections amended.” There could of course be no decision or legislation which is the equivalent of this plain constitutional requirement.

In The State, ex rel. Godfrey, Taxpayer, v. O’Brien, Treasurer, et al., 95 Ohio St., 166, it is held in proposition six of the syllabus: “The provision of Section 16 of Article II of the Constitution of Ohio, providing that no law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, is mandatory.”

The word “amendment” has different meanings which are determined by the connection in which it is used. But when used in connection with the constitution it has obviously a dual meaning, the particular one to be determined by its relationship. An amendment to the constitution, which is made by the addition of a provision on a new and independent subject, is a complete thing in itself, and may be wholly disconnected with other provisions of the constitution; such amendments for instance as the first ten amendments of the constitution of the United States. These were therein referred to as articles in addition to and amendment of the constitution.

Then there is the use of the word “amendment” as related to some particular article or some section of the constitution, and it is then used to indicate an addition to, the striking out, or some change in that particular section. In the former instance the amendment stands by itself, explains itself, and speaks for itself. The legislative body, or the elector, has before him, the whole subject upon which he is to act. But in the latter instance it may be essential for the elector to have before him the section which is proposed to be added to, or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark. But when the particular section, with the additions or subtractions shown' therein, is before the elector, this completed result becomes the amendment upon which he expresses his choice.

The procedure thus indicated was followed in this case. In the matter of the amendment proposed by the general assembly the entire Section 2 of Article XII, as amended, was printed upon the ballots, in addition to being published as required by the constitution, and upon the ballot there was stated, in parenthesis, “New Matter in Capitals,” and the new matter was designated by capitals as stated. Every elector who voted upon that proposition had before him, when he voted, the entire section of the constitution as it would read if the proposal were adopted, and when the 479,000 electors .voted in favor of it they stated as clearly as any one can state that they desired that the constitution itself should include the provisions stated on the ballot.

These conclusions are sufficient to dispose of this case. Because of course it is not denied that the uniform taxation section is in direct conflict with the classification proposal; nor that the former received the larger vote.

But how is it as to the classification proposal itself ?

The Constitution, Article II, Section 1 et seq., provides for the submission to the people of proposed amendments to the constitution, which have been initiated by petitions of electors. These provisions are explicit and comprehensive. In Section la it is provided that when a petition signed by the required number of electors has been filed with the secretary of state proposing an amendment to the constitution, “the full text of which shall have been set forth in such petition,” the secretary of state shall submit for the approval or rejection of the electors the proposed amendment in the manner thereinafter provided.

In Section 1g it is provided that a true copy of all laws, or proposed laws or proposed amendments to the constitution, together with an argument or explanation, or both, for, and also an argument or explanation, or both, against, the same shall be prepared.

It is further provided that the secretary of state shall cause to be printed the proposed law, or proposed amendment to the constitution, together with an argument and explanation, not exceeding a total of three hundred words, for each, and also an argument and explanation, not exceeding a total of three hundred words, against each, and shall mail or otherwise distribute a copy of such proposed law, or proposed amendment to the constitution, together with such arguments and explanations for and against the same, to each of the electors of the state, so far as the same may be reasonably possible.

There is no possible misunderstanding of these provisions. The constitution requires that every voter shall have laid before him in as complete and effective a manner as “may be reasonably possible” the proposal upon which he is to vote.

In this case the petition by the electors, and the copy mailed and distributed to the electors, all contained the entire proposed Section 2, Article XII, with the changes at the proper place.

As above stated, it is admitted that the provisions of the “Classification Amendment,” requiring that the general assembly shall classify all subjects of taxation, is in direct conflict with the provisions of original Section 2, Article, XII, which provide for the taxation of all property by uniform rule at its true value in money; and having received fewer votes than the uniform-rule section it cannot be held to have carried.

The case of Gabbert, Admr., v. C., R. I. & P. Ry. Co., 171 Mo., 84, is relied on. In that case two amendments were proposed by the general assembly to be voted upon by the people at the same election and both were adopted. Both were amendments to Section 28, Article II of the Constitution. One provided that the section should be amended by adding at a certain designated place a provision for a two-thirds verdict of a jury in civil cases not in courts of record and a three-fourths verdict in courts of record. The other provided that at a certain other designated place a proviso should be inserted making the convening of the grand jury subject to the discretion of the court.

There was no contention that the two amendments were incongruous, or contradictory or irreconcilable, and the court, at page 95, say: “Every voter, moreover, knew that if he voted for both amendments he was voting to add both to the section and if adopted each would be added in its proposed place to the section and the section and its amendments would then constitute a harmonious section.” There was not in the case a single word rejected which was included in either of the proposals. It was simply found that the language in both of the proposals together constituted one harmonious whole.

But in this case, it is proposed to reject from the proposal of the general assembly the larger part of it, including the entire portion thereof which provides for the uniform taxation of property, and to inject into it the provisions of the initiated or classification amendment, although the former received 140,000 more votes of the electorate than the latter.

There is another reason which in our judgment is fatal to the classification amendment. It will be noted that the first portions of the proposal read as follows: “The General Assembly shall provide for the raising of revenues for all state and local purposes in such manner as it shall deem proper. The subjects of taxation for state and local purposes shall be classified, and the rate of taxation shall be uniform on all subjects of the same class, and shall be just to the subject taxed.” But this was not the only change in the language of original Section 2 of Article XII. In the body of the section, and in the portion thereof providing for exempted property, is included the phrase “institutions of purely public charity.” This phrase was included in the original section as adopted in the Constitution of 1851. From time to time, covering a period of over 60 years, it had received the consideration of this court in a number of cases, and the disposition of the general assembly was towards the passage of laws enlarging exemptions which had been permitted under this provision. Serious question as to the extent of exemptions allowable under this clause began to be raised.

At the time of- the making of the original constitutions the provision named was doubtless sufficient to meet the requirements. As the state grew and expanded new relations grew up. There came to be great benevolent and fraternal societies and orders in our midst, which maintained hospitals, homes and institutions for the care and maintenance of their aged and infirm members, their widows and orphan children. But for them, much of the charitable work of these organizations would have to be done by the state itself.

This phase of the development of our social fabric is only one of many gratifying and similar elements in our growth. Lord Bryce, in his American Commonwealth, comments upon them and refers to an address by President Eliot, in which he said: “The successful establishment and support of religious institutions — churches, seminaries, and religious charities — upon a purely voluntary system, is an unprecedented achievement of the American democracy. * * * The endowment of institutions of education, including libraries and museums, by private persons in the United States is a phenomenon without precedent or parallel, and is a legitimate effect of democratic institutions.”

When the Constitutional Convention met in 1912, in response to this great benevolent spirit and to a compelling sense of justice toward those maintaining such institutions, the phrase “institutions of purely public charity” was changed so that it should read “institutions used exclusively for charitable purposes.” This clause includes the institutions to which we' have referred. They are, in many cases, not purely public charities, yet they devote themselves exclusively to charitable purposes. Under the 1851 provision they would not be entitled to the exemption. Under the 1912 provision, of course, they would. The classification amendment of last fall returns to the 1851 clause. It strikes at the heart of the great benevolent and humanitarian movements and imposes unjust burdens upon them.

Those who support the classification amendment, which contains this 1851 clause, now say that no attention should be paid to it, because in the official statements concerning the classification amendment and upon the ballot no reference to this change is made.

But the petition signed by more than ten per cent, of the electors, which initiated the proposal, contains the 1851 clause. The contention of relator here encounters an obstacle which is fundamental and vital. The filing of the initiative petition by ten per cent, of the electors is jurisdictional. There was absolutely no right to publish or submit a proposed amendment until the proper petition was filed. That is a constitutional prerequisite. It is also a constitutional prerequisite to jurisdiction that in the petition proposing an amendment to the constitution the full text shall have been set forth. Now, it is conceded that no argument or explanation of the proposed amendment as to charitable institutions was prepared and mailed, as required by the constitution; that in the certificates by the attorney general and secretary of state, and on the official ballot, no reference to it was made. The Constitution, Article II, Section 1 g, requires the ballot to be so printed as to permit an affirmative or negative vote on each proposed amendment to the constitution.

In this case the ballot used as to the classification amendment was as follows:

“ARTICLE XII,

“Section 2

“That the General Assembly shall classify property for taxation purposes.”

No reference whatever was made thereon to the vital change as to charitable institutions and no opportunity was given to the electors to express their decision upon that change, which opportunity the constitution expressly required they should have.

There was in this case, therefore, a clear and unquestioned failure to fulfil the requirement laid down by the constitution as a basis for the valid submission of the proposed amendment.

It is urged, however, that because of the ignoring of this 1851 exemption clause, in the respects pointed out, the clause itself should be disregarded and treated as a mistake. But the electors who signed the initiative petition included therein the 1851 clause. Their proposed amendment made that change. That, and that only, is the proposed amendment which the constitution requires to be submitted. Not only this, but it permits no other to be submitted. Where is there any authority for an administrative officer, or other person, who prepares an explanation, or an official ballot, to decide that he will disregard such clause or omit reference to it upon the ballot? Constitutional provisions cannot be lightly set aside in the performance of administrative duties, however innocently done. Where is the authority of a court to add to, or subtract from, a solemn document prepared and filed pursuant to explicit terms of the constitution for the purpose of altering the charter of the people’s government? We cannot believe that the fundamental law can be taken apart, built up, amended, or dealt with, in that manner.

But surely such a thing should not be participated in, or sanctioned by, courts of last resort. Probably our chief contribution to the science of government is the principle of the complete separation of the three departments of government, executive, legislative and judicial. No feature of the American system has excited greater admiration. It is no part of the function of courts to make the constitution and the laws. Their only anxiety and concern should be for their correct declaration and just enforcement. They can have no more sacred duty, when the making or altering of the organic law is involved, than to insist upon an adherence to the procedure which the people themselves have ordained.

The petition in this case sets up the classification amendment in the exact terms petitioned for, including the 1851 clause as to charitable institutions, and the prayer of the petition is that this court issue a writ of mandamus to compel the defendant to publish the same as an amendment to the constitution. '

The rule is elementary and universal that before a writ of mandamus is issued the plaintiff must show himself clearly entitled to the writ prayed for, and the writ, as above stated and prayed for, is the only one which in this case the court could in any event, or upon any view, have authority to issue.

We are clearly of the opinion that the writ should be denied.

Writ denied.

Nichols, C. J., Matthias and Wanamaker, JJ., concur.

Jones and Robinson, JJ., dissent.

Matthias, J.,

concurring. I concur in the judgment in this case, not upon the ground that the amendment proposed by initiative petition is in conflict with the amendment proposed by the joint resolution of the general assembly, but upon the ground that the initiated amendment, or so-called classification amendment, was not validly submitted, and, therefore, was not legally adopted. Upon the latter proposition I fully concur in the opinion of Judge Johnson.

The relator by this action in mandamus seeks an order of the court requiring the respondent, the secretary of state, to publish as an amendment to the constitution the amendment proposed by the initiative petition, claiming it has been regularly adopted by the electors of the state. If the amendment so proposed was properly submitted and passed, the secretary of state should be ordered to publish that amendment; but if the proposed amendment was not legally passed, because not validly submitted, certainly the secretary of state should not be required to publish it as an amendment to the constitution. Clearly it was not, for the reason that by the manner of submission no opportunity was afforded the voter to vote separately upon the three separate and distinct changes — vital changes — proposed to be made in the constitution: (1) Conferring upon the general assembly complete and absolute power to provide for raising revenue for all purposes, not only state purposes, but local purposes, thus taking from charter cities the power now possessed to levy taxes for local purposes; (2) Authorizing and directing the general assembly to classify the subjects of taxation; and (3) Exempting from taxation only “institutions of purely public charity,” instead of “institutions used exclusively for charitable purposes.” Not only was there no provision made or opportunity afforded to vote separately upon the several changes involved in the proposal, but the voter was in no wise advised that more than one change was proposed to be made.

Section 5019, General Code, requires that each amendment shall be stated on the ballot “in language sufficient to clearly designate it.” The language used to designate this amendment upon the ballot was “That the General Assembly shall classify property for taxation purposes.” The language used does not serve to designate the proposed changes, but only one of them.

The case of the relator is in no wise aided by the provision of Section 1 g, Article II of the Constitution, requiring that “the petition and signatures upon such petitions, so verified, shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise provided;” nor by the further provision that no amendment so submitted and receiving an affirmative majority shall be held unconstitutional or void on account of the insufficiency of the petition by which such submission was procured. The question presented is not one involving the regularity or sufficiency of the initiative petition. So far as appears it was regular and sufficient in all respects. The failure of the proposition results from the fact that it was not submitted to the electors in the manner and form required, and therefore neither the proposed amendment nor any part thereof was legally adopted. In my opinion there could be no possible justification for an order of the court disregarding a part of the amendment proposed by initiative petition, as suggested upon argument of the case by counsel for the relator, and directing the secretary of state to publish the remainder thereof as a duly adopted amendment to the constitution.

Wanamaker, J.,

concurring. Everyone admits that the state of Ohio needs more taxes. General High Cost of Living settled that.

Everyone admits that the other fellow shall pay more taxes.

The question is, Who is to be the “other fellow”?

This court is not now concerned with whether one group of citizens owning one kind of property shall pay one rate of taxation, and another group of citizens owning another kind of property shall pay a different rate of taxation; we are not now concerned with the question whether or not there shall be one rate on land values and another rate on personalty values; whether one kind of property shall bear the bulk of taxation for governmental purposes and another kind of property shall comparatively escape such burden; whether, in order to induce honest tax returns, certain classes of property shall be taxed only nominally, whereas other property, incapable by nature of concealment or perjured returns, shall be assessed at its full value. Necessarily, if some group of citizens shall pay less taxes, it must follow that other groups must pay more taxes, else the revenues shall be still further reduced.

Whether the anxiety among certain groups representing certain particular' interests proceeds from the desire to pay more taxes, or the desire to pay less taxes, is not' here and now important.

The questions in this case are two and only two:

1. Was the classification amendment, as described in relator’s petition, legally submitted to the voters of Ohio?

2. Is said amendment in conflict with the Shinn amendment, which received the greater vote at the same election?

The questions are essentially and exclusively constitutional. In considering these questions our paramount obligation is, as required by our oath, “to support the constitution” — not some part of the constitution, but the whole constitution.

We must not permit our zeal for one provision of the constitution to impair our obligations to support all parts of the constitution, and it is, therefore, our plain duty to take that constitution by its four corners, to survey it as the political will of the people, and then to support it in whole and in part in the spirit and purpose in which it was made.

If we shall first examine the fixed, fundamental facts of this controversy, about which there is no disagreement, we shall better be able to understand the inferences of fact that may be drawn from them and the principles of law applicable to them.

The vital controversy in this case grows out of Section 2, Article XII of the Constitution, as amended in 1912, the pertinent part whereof reads as follows:

“Section 2. Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property according to its true value in money, * * * but burying grounds, public school houses, houses used exclusively for public worship, institutions used exclusively for charitable purposes, * * * may, by general laws, be exempted from taxation.”

Two groups of citizens were eager to have said Section 2 amended, one group in one way and the other group in another way.

The first group may be known as the Shinn Amendment Group, and their proposal was submitted by the joint action of the general assembly. The pertinent part of such proposal is here given as Proposal No. 1, Section 2:

“Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, and also all real and personal property according to its true value in money, * * * but burying grounds, public school houses, houses used exclusively for public worship; institutions used exclusively for charitable „purposes, * * * may, by general laws, be exempted from taxation; and laws may BE PASSED TO PROVIDE AGAINST THE DOUBLE TAXATION THAT RESULTS FROM THE TAXATION OF BOTH THE REAL ESTATE AND THE MORTGAGE OR THE DEBT SECURED THEREBY, OR OTHER LIEN UPON IT.”

New matter appears in capital letters.

The other group may for convenience sake be known as the Classification, Amendment Group, and their amendment was submitted by initiative petition, the pertinent part reading as follows:

Proposal No. 2, Section 2.

[a] “the general assembly shall provide FOR THE RAISING OF REVENUES FOR ALL STATE AND LOCAL PURPOSES IN SUCH A MANNER AS IT SHALL DEEM PROPER. [b] THE SUBJECTS OF TAXATION FOR STATE AND LOCAL PURPOSES SHALL BE CLASSIFIED, AND THE RATE OF TAXATION SHALL BE UNIFORM ON ALL SUBJECTS OF THE SAME CLASS, AND SHALL BE JUST TO THE SUBJECT TAXED; * * * but burying grounds, public school houses, houses used exclusively for public worship, [c] institutions OF PURELY PUBLIC CHARITY, * * * may, by general laws, be exempted from taxation.”

New matter appears in capitals.

Three ways are provided by the constitution for the amendment thereof:

1. Through a constitutional convention.

2. Through a joint resolution of the general assembly.

3. Through an initiative petition.

It is admitted that the classification amendment was sought to be submitted by virtue of an initiative petition.

The question, therefore, first confronting us, is whether or not such amendment was constitutionally submitted to the voters of Ohio.

When the sovereign voters gathered at their polling places on election day, or, as referred to in the argument of this cause, at the “grand assize,” those voters had the right to expect that the ballot handed to them conformed to the constitution and the laws, especially in respect to particularly advising them as to the constitutional changes that would be made, so that they might intelligently express their judgment upon each one of the several amendments. The voters had the right to feel that there was no subterfuge — no sleepers, no jokers — hidden within the amendment, and that the title at the top of the ballot was a truthful and an honest one; that is, that it conformed to the language of the constitution and the statutes in this behalf.

Now, what are some of the legal requirements, constitutional and statutory, touching the submission of amendments, in order to fairly and fully advise the voter?

Section 5019, General Code, includes the following provision:

“When an amendment to the constitution is to be submitted to the electors for their approval or rejection, * * * each amendment shall be stated * * * in language sufficient to clearly designate it, which statement shall be printed,” etc.

What is meant by “each amendment shall be stated * * * in language sufficient to clearly designate it”?

These words are plain and pertinent and are clearly designed to advise the voter so that his vote may be intelligently and patriotically cast.

At the top of the ballot the title to this amendment appeared in the following words: “Classification of property.”

Did these three words “clearly designate” the amendment so as to advise the voter of the new matter included therein and the constitutional changes resulting therefrom?

What was the new matter ? I shall divide it into three heads:

(a) “The general assembly shall provide for the raising of revenues for all state and local purposes in such manner as it shall deem proper.”

(b) “The subjects of taxation for state and local purposes shall be classified, and the rate of taxation shall be uniform on all subjects of the same class, and shall be just to the subject taxed.”

(c) “Institutions of purely public charity * * * may, by general laws, be exempted from taxation.”

Observe first that the matter designated as “(a)” is nowhere and in no wise even referred to in the title, contrary to the statute.

Observe second that the matter designated as “(b)” relates to the subjects of taxation, and not merely property, and, therefore, even this part of the amendment does not properly conform to the statute.

Observe third that the matter designated as “(c),”' “institutions of purely public charity,” which is concededly new matter, is nowhere and in no wise referred to in the title, all contrary to the statute.

Now, how can it be claimed in fairness and reason that this amendment was legally submitted, that is, that the title at the top of the ballot was, in the .language of the statute, “sufficient to clearly designate it,” so as to fairly and fully advise the voter of the changes contemplated by the amendment?

If amendments may be submitted in this loose, lax way, if the requirements of constitutions and statutes may be so lightly and generally disregarded, what protection have the people as to the stability of their organic law?

The failure to make any specific or general reference to “(a)” is sought to be answered by the claim that this provision is not new matter, by reason of the provision of Section 13, Article XVIII, which so far as pertinent reads as follows:

“Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes.”

Now, note that this Section 13 recognizes the power as existing in the municipality, but that the general assembly may “limit” that power, whereas in the classification amendment the power is absolutely withdrawn from the municipality and wholly and exclusively placed in the discretion of the general assembly; a most radical difference. The city must surrender one of the most vital powers of home rule to the general assembly of Ohio.

There is no answer to the failure to designate the change under “(c)” except that this court should disregard the change. If this court is warranted in disregarding a part of the amendment, may it not with equal reason and logic disregard the whole of the amendment? The whole amendment was petitioned for in a petition regularly signed and filed, and it is the whole amendment, the whole proposal, that is before this court for consideration, and it cannot be bisected by any sort of judicial legerdemain. To do so would be to presume that the persons circulating the initiative petition, and the thousands of voters who signed such petition, each and all of them, had no intention of petitioning for the submission of the amendment as it was set forth in their petition; that they did not mean what they said; that they did not say what they meant; and that it was for this court finally and ultimately to say what the petitioners petitioned for, upon the mere suggestion of counsel, and wholly outside of the plain import of the language put into the petition.

The dangerousness of such a doctrine, the assumption of such a power by courts of last resort, would shake all the foundation of constitutional government.

Why such drastic and desperate demands are made upon this court is most apparent. If the classification amendment, as voted upon by the people, contained the language “institutions used exclusively for charitable purposes,” which it did not, then this language need not be referred to in the ballot title, because not new matter; but if the classification amendment, as voted on by the people, contained the language “institutions of purely public charity,” which it did, then it is clearly apparent that this is new matter and that the title in no wise referred to it.

The constitutional amendment of 1912 pertaining to Section 2, Article XII, deliberately and designedly extended the exemption as to “institutions of purely public charity,” as it was in the Constitution of 1851, to “institutions used exclusively for charitable purposes,” in order to enlarge the exemption and give the legislature power to exempt Masonic Homes, Odd Fellow Homes, K. of P. Homes, K. of C. Homes, and all other fraternal, philanthropic, charitable homes and institutions, which, while not “purely public,” under the provisions of the Constitution of 1851, were, nevertheless, “institutions used exclusively for charitable purposes,” and which, as such, the general assembly were warranted and justified in exempting from taxation.

If the classification amendment shall stand, then these exemptions must fall.

The filing of the initiative petition on the classification amendment was jurisdictional to the submission of that amendment, and of no other amendment; the whole amendment, and not merely a part of it.

This brings us to the question as to what is meant by the word “amendment,” as used in this case and in the constitution in this behalf.

It is urged by the opposition that the word “amendment” is here us.ed in its strict, technical sense, that is, that it merely applies to the specific change to be made in the present constitution.

Now, the classification amendment, so called, if the statements and course of reasoning herein set forth are true and sound, contained three changes from the old amendment:

1. Municipal taxation.

2. Classification of property.

3. Exemption of charities.

The voter under the constitution is given the right to vote on each amendment separately, and if the word “amendment” has this strict, technical meaning, as contended for by the opposition, then it must follow that an opportunity be given on the ballot to vote separately upon each one of these changes. Obviously this was not done, and if that be the true version, the amendment must fail. But I do not so understand the word “amendment” as used here. The people put it into their constitution doubtless having in mind the customary use of the word in both state and federal practice, and that use has been almost wholly in popular phrase “the proposal,” the whole proposal submitted to the states or to the voters of the states.

I maintain that this was the use made of it by the people of Ohio in Section 16, Article II, which contains this language:

“If conflicting proposed laws or conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes shall be the law, or in the case of amendments to the constitution shall be the amendment to the constitution.”

This is the simple language of the plain people and it is to receive such meaning as they usually give to it in political discussions and arguments.

The people here evidently meant that the proposed “amendment” was the whole proposal as submitted. They did not go into any technical hairsplitting distinctions as to just what particular changes would be brought about upon the. existing constitution, but took the proposal as a whole, some voting for the proposal upon one ground and some on another ground, but it was the whole proposal that was either voted for or voted against. The voters so understood it and this court is not at liberty to disregard that understanding. That this construction urged by the opposition is strained, unnatural, and uncustomary in the language of the people, and even of the legal profession, appears in a most striking way from the petition filed in this case by the relator.

The third paragraph of the petition in mandamus filed in this case reads:

“At the regular election for state officials in the year 1918, there was duly submitted to the electors of the state, for their approval or rejection, a proposal duly initiated by petition, signed by more than ten per centum of said electors of said state, FOR AN AMENDMENT TO THE CONSTITUTION OF THE STATE OF OHIO.”

The very petition praying for a writ of mandamus by this court in. favor of the classification amendment declaring said classification amendment in whole as a part of the Ohio constitution, clearly admits this general customary use of the word “amendment,” that is, that it related to the whole proposal; that it related to the whole amendment as set out in the petition, and that any writ this court might issue in favor of the petitioner would necessarily apply not to the specific changes in the constitution, but to the whole amendment as petitioned for, the whole amendment as voted for.

Having concluded by this course of reasoning that the classification amendment, so called, was not regularly and constitutionally submitted, it would not be necessary to consider the claims of conflict, because without them the amendment falls. However, so much attention has been given this proposition in the argument and briefs that it deserves at least passing notice.

Under the Shinn amendment it is clear that there are but two classes of property:

1. Property under mortgage.

2. All remaining property.

The general assembly may adopt one rule as to a rate as to the first class and an entirely different rule as to the rate touching the second class. But they are limited to these two classes. Under the classification amendment they are not limited to these two, but may make any number of classes that they see fit to make. How can it be said that in this respect there is no conflict ?

I have already noted the conflict as to exemptions. Under the Shinn amendment all charities, though not of a “purely public” nature, so long as they are used exclusively for “charitable purposes” may be exempted, while under the classification amendment they cannot be so exempted unless they are “purely public,” that is, open to all the public without regard to fraternal, religious or other distinctions.

One accustomed to the loose use of legal language might say that these objections are technical, but what is a technical objection? It is one that goes to the form of things rather than the fact, to the style rather than the substance.

In its customary and more or less offensive sense it has been held to apply to the unimportant, inconsequential or trifling phases of any given situation. But surely that word could not be applied to a constitutional method, or a statutory method, for the submission of an amendment to the vote of the people, which in substance requires that it shall be “in language sufficient to clearly designate it.”

If it lacks that clear designation so that the voter does not understand it from the title, then it clearly does not comply with such legal requirement. Then such amendment is not legally submitted, is not legally voted upon and by no possibility can be legally adopted.

The same is likewise true upon the subject of conflict. It must be a conflict of substance or of principle, not a mere conflict of phrase, and that applies both to the classification for taxation, as above considered, and the classification as to exemptions.

It is unthinkable to hold that the voters of thq state of Ohio, who have always declared for home-rule power, should have deliberately handed over to the general assembly the power of taxation for “local purposes;” it is unthinkable that the voters of Ohio who have been promoting charitable purposes should, by voting for this amendment, burden such charitable purposes with taxes from which they had expressly exempted them in 1912.

Outside of the legal questions involved in this case the state of Ohio should profit by the experience the people and courts have had in the submission of amendments to the constitution.

It is most vital that the people of Ohio should know the nature and effect of any contemplated constitutional change. They should be clearly and fully advised as to the scope and substance of such change, and it should be clearly and fully indicated on the ballot.

Let the legislature, pursuant to its powers, enact a law creating a commission, composed, say, of the governor of Ohio, the attorney general of Ohio, and the chief justice of the supreme court, to pass upon all ballot titles touching amendments and statutes that are to be referred, so that the people may vote intentionally and intelligently upon such questions.

Donahue, J.,

dissenting. It is not necessary to discuss at this time whether the provision of Section lb, Article II of the Constitution, relating to conflicting amendments, applies to a conflict be-between an amendment submitted under Section la, Article II, and an amendment proposed by the general assembly under the provisions of Section 1, Article XVI.

In determining the question of conflict between two constitutional amendments approved by a majority of the electors at the same election a court is not concerned with the wisdom, necessity, or desirability of either.

The people of this state write its constitution. By this constitution they delegate power to the executive, judicial, and legislative departments of the state to enforce the provisions of that constitution, regardless of whether such officers are in sympathy with such provisions or not. For this reason, before a court should defeat the will of a majority of the electors of this state, declaring in favor of proposed constitutional amendments, the conflict between such amendments should be so clear, so patent, so obvious, so definite and certain, so absolutely irreconcilable, that one cannot possibly operate without defeating the intent and purpose of the other.

This rule of construction is well stated by Johnson, J., in the case of Fitzgerald et al. v. The City of Cleveland, 88 Ohio St., 338, in this language (page 351):

“It will be remembered that this section and Article XVIII were adopted as amendments to the constitution on the same day. By that adoption they become parts and provisions of the same instrument. There are well-established rules by which they must be weighed. They must be construed together and effect must be given to both. Differences, if there are any, must if possible be reconciled. As stated in Cooley on Const. Limitations (7 ed.), p. 92: 'One part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.’ ”

It is unnecessary to cite further authorities. This rule has always been applied by this court even in the construction of statutes claimed to be in conflict with each other, or in conflict with the constitution of the state. Certainly a constitutional amendment adopted by a majority of the electors of this state is of far more dignity and importance than an act of the general assembly, and, therefore, in case of constitutional amendments, this rule should be even more strictly applied.

In determining whether these- two constitutional amendments present such a plain, obvious, irreconcilable conflict, that one or both must fail to become a part of the constitution of this state, it becomes necessary to examine in detail the nature, purpose and effect of each, and first, it might be proper to consider the meaning of the term “amendment to the constitution,” as found in Sections la and lb of Article II, and Section 1 of Article XVI, although it would seem there ought not to be any diversity of opinion in regard to this.

This term undoubtedly does not comprehend and include the original section that is sought to be amended, but, on the contrary, only that which constitutes an amendment of it. Bouvier defines an amendment as “an alteration or change of something proposed in a bill or established as law.” This definition was approved and applied in the case of Gabbert, Admr., v. C., R. I. & P. Ry. Co., 171 Mo., 93-96. That this meaning was understood and intended not only by the members of the constitutional convention that drafted these sections of the constitution, but also by the voters of the state adopting the same, clearly appears from the later constitutional provisions found in Section 1g. Article II, that the secretary of state shau cause to be placed upon the ballots the title of any such proposed amendment to the constitution. This requirement of the constitution is also carried into Section 5019, General Code, which section further provides:

“When an amendment to the constitution is to be submitted to the electors for their approval or rejection, such amendment shall be so submitted on a separate ballot at the top of which shall be printed the words ‘Proposed Amendment to the Constitution,’ or, if more than one such amendment is submitted at the same election, such heading shall be ‘Proposed Amendments to the Constitution.’ Each amendment shall be stated thereon in language sufficient to clearly designate it, which statement shall be printed in a space defined by ruled lines with two squares to the left thereof, the upper of which shall contain the word ‘Yes,’ and the lower the word ‘No.’ There shall be two similar blank squares, one on the left of that containing the word ‘Yes,’ and one to the left of that containing the word ‘No.’ Persons desiring to vote in favor of any such amendment ■ shall do so by making a cross mark in the blank square to the left of the word ‘Yes,’ and those desiring to vote against the same shall do so by making a cross mark in the blank square to the left of the word ‘No.’ ”

In compliance with this constitutional and statutory requirement, the general assembly of Ohio, when it adopted the resolution proposing one of these amendments, provided that the proposal should be designated upon the official ballot as follows:

“To provide against double taxation of real estate — Yes.

“To provide against double taxation of real estate — No.”

The secretary of state in preparing the official ballot failed to follow the express mandate of Section 1 g, Article II of the Constitution, and Section 5019, General Code, requiring him to print upon such ballot “the title of the amendment,” or “language sufficient to dearly designate it,” but, on the contrary, printed the entire amendment in connection with the section to be amended.

This court is now asked not only to approve this form of official ballot, notwithstanding the provisions of the constitution and the statute of this state to the contrary, but also to find, because the official ballot submitting this constitutional amendment proposed by the general assembly did not conform to the constitution and laws of this state, that therefore the initiated amendment is in direct conflict with it; for it is only when this amendment proposed by the general assembly is written in connection with the original section that the whole, taken together, presents even a suggestion of conflict.

The argument in favor of such form of official ballot, that “every elector who voted upon that proposition had before him, when he voted, the entire section of the constitution as it would read if the proposal were adopted, and when the 479,000 electors voted in favor of it they stated as clearly as any one can state that they desired that the constitution itself should include the provisions stated on the ballot,” might properly be made to a constitutional convention, or to the general assembly of this state, if a change were sought in the provision of either the constitution or the laws in relation to what the official ballot should contain. Such a method, however, cannot be approved, much less justified, by any argument of expediency or advantage to the voter, where the constitution or laws of this state provide in express terms a different method of submission.

Either the result must be the same as if the official ballot had contained this designation, as required by the constitution and the statutes of this state and the resolution of the general assembly submitting the proposal, or the method of its submission .was such a departure from the mandate of the constitution and the statutes as to invalidate its approval by the electors and require its resubmission to the people under a proper designation or title; for it is not in the power of the secretary of state, or for that matter in the power of the general assembly, to submit an amendment in any form other than in substantial compliance with the provisions of the constitution. Nor can it be submitted in such a way as to defeat the right of the people to initiate a proposed constitutional amendment of other parts of the same section not affected by the amendment proposed by the general assembly.

There is no possible theory upon which to predicate the argument that the entire section as it read prior to the proposed amendment was incorporated into and became a part of the amendment, merely because, in defiance of the constitution and the statute, it was printed upon the ballot in connection with the proposed amendment, and was therefore resubmitted and readopted by the people:

First: Because there is no authority either in the constitution or the statutes of this state authorizing the resubmission of the original section for the approval of the voters, either as a part of the amendment or in connection therewith.

Second: Because Section 1 g, Article II of the Constitution, and Section 5019, General Code, expressly provide that this shall not be done, but on the contrary, that nothing shall be printed upon the ballot except the “title of the proposed amendment” or “language sufficient to clearly designate it.”

The whole contention that there is a conflict between the amendment proposed by the general assembly and the initiated amendment is predicated solely upon the theory that the initiated amendment is in conflict with parts of the original section, which were unlawfully and improperly printed upon the ballots submitting for the approval of the electors the amendment proposed by the general assembly.

Of course there is a conflict between this initiated amendment and the part of the old section it was intended to alter and amend; otherwise there would be no purpose in the amendment. But there is absolutely no suggestion of conflict, much less a conflict, between the language of the initiated amendment and the amendment proposed by the general assembly. The one authorizes the general assembly to classify property for taxation purposes; the other relates solely to the authority of the general assembly to provide against double taxation of real estate.

The best and final test, however, as to whether these separate amendments in any wise conflict with each other, is to write Section 2, Article XII, with these amendments included, each in its proper place, and then determine from a reading of that section, as so written, whether there is any possible conflict between the amendments that have been authorized and written therein by the electors of the state. This section, including these amendments, now reads as follows:

“Section 2. the general assembly shall PROVIDE FOR THE RAISING OF REVENUES FOR ALL STATE AND LOCAL PURPOSES IN SUCH MANNER AS IT SHALL DEEM PROPER. THE SUBJECTS OF TAXATION FOR STATE AND LOCAL PURPOSES SHALL BE CLASSIFIED, AND THE RATE OF TAXATION SHALL BE UNIFORM ON ALL SUBJECTS OF THE SAME CLASS, AND SHALL BE JUST TO THE SUBJECT TAXED; excepting all bonds outstanding on the first day of January, 1913, of the State of Ohio, or of any city, village, hamlet, county, or township in this state or which have been issued in behalf of the public schools in Ohio and the means of instruction in connection therewith, which bonds outstanding on the first day of January, 1913, shall be exempt from taxation; but burying grounds, public school houses, houses used exclusively for public worship, institutions used exclusively for charitable purposes, public property used exclusively for any public purpose, and personal property, to an amount not exceeding in value five hundred dollars, for each individual, may, by general laws, be exempted from taxation. AND LAWS MAY BE PASSED TO PROVIDE AGAINST THE DOUBLE TAXATION THAT RESULTS FROM THE TAXATION OF BOTPI THE REAL ESTATE AND THE MORTGAGE OR THE DEBT SECURED TPIEREBY, OR OTHER lien upon it, but all such laws shall be subject to alteration or repeal; and the value of all property, so exempted, shall, from time to time, be ascertained and published as may be directed by law.”

A mere reading of this section as changed by these two amendments is sufficient to show beyond all question that there is absolutely no conflict between these amendments, or any part thereof, and that each may go into full effect and operation without in any way defeating or hindering the intent and purpose of the other.

While all of the original Section 2, Article XII of the Constitution, was improperly printed upon the official ballot in connection with the amendment proposed by the general assembly, nevertheless the ballot further contained the information, “New Matter in Capitals,” and the part that was printed in capitals upon this official ballot read as follows:

“And laws may be passed to provide against the double taxation that results from the taxation of both the real estate and the mortgage or the debt secured thereby, or other lien upon it.”

This undoubtedly advised the voter just what part of the matter printed upon the official ballot constituted the amendment, and he must have known and understood just what was proposed to be added to that section of the constitution.

Technically it was an improper form of ballot, yet if it was not misleading to the voter there is no reason why it is not a substantial compliance with the constitutional and statutory requirements. On the other hand, if it necessarily follows that a different result obtains than if the ballot had merely contained the “title of the proposed amendment” or “language sufficient to clearly designate it,” as the constitution and statute require, then this amendment was so erroneously submitted to the electors that its approval is absolutely void.

We are not disposed to this view of the case. On the contrary we think that notwithstanding the improper form of the ballot the voter intended to approve the amendment only, as appeared in capital letters printed thereon, and that the fact that all of original Section 2, Article Nil, was printed thereon in connection with this amendment can in no wise change the fact that the vote was merely for the amendment and in no wise affected the provisions of the original section improperly upon the ballot.

In pursuance of the constitution and statutes of the state, a synopsis was furnished, explaining the provisions and purposes of the initiated amendment, as follows:

“That the general assembly shall classify property for taxation purposes. The proposed amendment does not change any of the provisions of Section 2, Article XII of the Constitution having to do with the exemption of state, municipal, and school bonds, school-house, charitable institutions, etc.”

This synapsis was submitted to the attorney general of the state, who upon examination certified that this was a truthful statement of the contents and purposes of the proposed amendment. It now appears, however, that through some inadvertence, the language in the initiated amendment is not identical with the language of present Section 2, Article XII, in reference to exemption from taxation of institutions used exclusively for charitable purposes. This change was not covered by the synopsis approved by the attorney general, and was not printed in italics or capitals in the copy of the proposed amendment mailed to the electors by the secretary of state.

This is in no wise important in determining the question of conflict. Even if it were conceded that this change in the language is material, that it was a part of the amendment, and was approved by the electors of the state, it in no wise conflicts with the proposal by the -general assembly to amend this section by authorizing the general assembly “To provide against the double taxation,” etc. In fact, this initiated amendment might have specifically provided for an entire change in the exemption laws, and so long as such change would not prevent or interfere with the operation of the amendment to provide against double taxation of real estate there would be no conflict.

The majority of this court having found that there is no conflict between these constitutional amendments approved by a majority of the electors at the same election, this ought to end the inquiry, for that is the only issue raised by the pleadings, but it is now claimed that this unintentional mistake in copying the language of the original section in reference to exemption from taxation of institutions used exclusively for charitable purposes defeats the whole amendment, because it is in and of itself an amendment to the constitution, and was not properly submitted; although it is not made to appear how this substantially changes this provision in reference to such exemptions.

In the case of The Benjamin Rose Institute v. Myers, Treas., et al., 92 Ohio St., 252, this court reached the same conclusion, and entered the same judgment it would have entered had Section 2, Article XII of the Constitution, as amended September 3, 1912, applied to that action, although it was suggested in the opinion by Nichols, C. J., at page 271, “The court might regard this latest expression of the public will as one justifying a strict interpretation of all laws and statutes exempting property from taxation.”

This court has repeatedly defined “public charity” so broadly as to include all the benevolent institutions and fraternal charities mentioned in the majority opinion; so that it would appear that the purpose of the change in language in the amendment of 1912 was not as suggested in the majority opinion, but rather as stated by Nichols, C. J., in Rose Institute v. Myers, Treas., et al., supra.

However that may be, if this must in fact be considered a separate and distinct amendment, notwithstanding there was no intent or purpose to make any such change or propose any such amendment, then it is clear that it was not submitted in accordance with the provisions of the constitution or the statute, and for that reason it was not approved by the voters and therefore does not become a part of the constitution of Ohio, any more than if it had in fact' been submitted as a separate proposal and had failed to receive a majority of the votes. But why the failure to submit this separate and distinct proposal, if it is to be considered as such, would invalidate the proposal that was properly submitted and approved by a majority of the electors of the state is hard to understand.

Undoubtedly this change of language from “institutions used exclusively for charitable purposes” to the words “institutions of purely public charity” is separate and distinct from the proposal authorizing the general assembly to classify property for taxation. They are not related in any sense, nor can one be said to be a part of the other, nor are they in any way dependent one upon the other. The failure of the voters to approve the one, either because it was not submitted or was improperly submitted, or because it did not receive enough votes, ought not to affect the validity of the approval of the other.

It appears from the majority opinion, and the opinion concurring therewith on this branch of the case only, that the majority of this court have reached the conclusion, that the petition filed with the secretary of state does not propose separate amendments and that each of these amendments should have been submitted under a separate title or designation, regardless of the fact that it is not only apparent, but admitted, that this change in language was not intentional, but on the contrary a mere clerical error. If this, petition does in fact present two separate amendments, then of course each should have been submitted separately, under a separate title or designation. However, there is no claim made by anyone that the language used in submitting the classification amendment was not “sufficient to clearly designate it,” and therefore that separate proposed amendment was properly submitted and was approved by a majority of the voters of this state; but the amendment proposed in relation to exemptions of property of “institutions of purely public charity” was not so submitted, and therefore it failed of approval. It would be carrying the technicalities of the law to the vanishing point to hold that the classification amendment failed because the exemption amendment was not properly submitted.

In this view of the case, it is not important whether this was in fact a separate proposal or a mere clerical error. In either event, the change has not been effected, for clearly it would be a direct violation not only of the statute, but of the constitution of this state, to permit a substantial change to be made in a separate and distinct part of a section of the constitution without giving the voters of the state a full and fair opportunity to approve or reject the same.

It is said that the court has no power to change the language of the petition filed with the secretary of 'state. That of course is conceded. But it has the power and authority, and it is its duty, to declare just which of the amendments proposed by this petition, if it proposes more than one, were or were not properly submitted to the voters and approved by them.

It is suggested in the concurring opinion that the initiated amendment authorizing the classification of the subjects of taxation for state and local purposes is in conflict with the home rule amendment of 1912. However, it is not seriously contended by counsel for respondent that even if the claim were well founded it could affect the validity of the amendment. On the other hand, it is clear that this amendment does not in any way change the constitutional provision or affect the right of a municipality to levy taxes for municipal purposes.

The authority to limit the power of municipalities to levy taxes or incur debts for municipal purposes is conferred upon the general assembly of Ohio by Section 13, Article XVIII, and Section 6, Article XIII, of the Constitution. The initiated amendment does not refer to the power or authority to levy taxes, but only to the classification of the subjects of taxation, and specifically provides that this classification must be uniform on all subjects of the same class.

This provision was printed in italics as part of the proposed amendment in the advertisement mailed by the secretary of state to the electors. It was a part, and intended to be a part, of the amendment authorizing the general assembly to classify property for taxation purposes, and if it were in fact in conflict with a dozen other provisions of the constitution adopted and approved by the voters at an earlier election it would nevertheless be the last expression of the will of the people of Ohio, and must necessarily be given full force and effect.

It is suggested in the concurring opinion that the petition in this case asked for a writ of mandamus to compel the secretary of state to publish as an amendment to the constitution the amendment proposed by the initiated petition, and that this court must either grant or refuse that writ, according to the prayer of the petition.

I do not understand that in a case of this character a court lacks the authority to grant the relief to which the relator is clearly entitled, even though it is not all the relief asked for in the prayer of the petition. It is true that in an action in mandamus against a fiscal officer, to require him to issue a voucher or to pay a sum certain, if it appears that the amount due the relator is in dispute, the court in such an action will not undertake to determine the dispute, but will refuse to issue the extraordinary writ of mandamus and require the relator to bring his action in the proper forum to ascertain the exact amount of the debt.

But in this case, if in fact this petition filed with the secretary of state initiates two separate proposed amendments to the constitution, one of which was properly submitted and approved by the electors of the state, and the other not properly submitted and therefore not approved, there can be no valid reason for denying the relator the relief to which he is clearly entitled as to the one that was properly submitted and approved by the electors, and for refusing the writ as to the other. Certainly no such technical objection ought to be permitted to obstruct the administration of justice or to defeat the will of the electors of this state.


author: Nichols, C. J.

text:
    The State, ex rel. Zielonka, City Solicitor, v. Carrel, Auditor.

      Taxation — Excise and occupational taxes — State and municipalities may levy, when — Validity of Cincinnati ordinance — Section 10, Article XII, and Section 3, Article XVIII, Ohio Constitution.

    1. The State of Ohio, under the provisions of Section 10, Article XII of the Constitution, has authority to levy excise taxes in the form of an occupational tax.
    2. Under the grant of power of local self-government provided for in Section 3, Article XVIII of the State Constitution, the city of Cincinnati, as long as the State of Ohio through its genera! assembly does not lay an occupational tax on businesses, trades, vocations and professions followed in the state, may raise revenue for local purposes, through the instrumentality of occupational taxes.
    3. The ordinance of the city of Cincinnati providing that an annual tax shall be laid upon all persons, associations of persons, firms and corporations pursuing any of the trades, professions, vocations, occupations and businesses therein named, is a valid exercise of the legislative power of such city.
    (No. 16013
    Decided January 28, 1919.)

      In Mandamus.
    The facts are stated in the opinion.

      Mr. Saul Zielonka, city solicitor, and Mr. Charles B. Weber, assistant city solicitor, for plaintiff.

      Messrs. Clore & Clayton; Mr. Michael G. He-ints; Mr. William Thorndyke and Mr. R. S. Alcorn, for defendant.

      Mr. George S. Hawke, amicus curiae.

   Nichols, C. J.

In May 1918 the city of Cincinnati acting through and by the council of that city passed a certain ordinance wherein it provided that an annual tax should be charged upon all persons, firms and corporations pursuing any of the trades, professions, occupations, vocations and businesses therein named.

The occupations named were manufacturers of bottles and glassware articles, and osteopathic physicians.

These particular occupations were chosen, it is to be supposed, simply for the purpose of constituting the vehicle by which a test might be made of the right of a municipality to impose such charge or tax upon occupations generally.

After the ordinance became effective, a certain osteopathic physician, resident of Cincinnati, tendered to the city auditor the amount of the tax provided for in the ordinance, which the auditor refused to accept. Thereupon action in mandamus was instituted in this court by the city solicitor against the city auditor.

This petition alleged that the city of Cincinnati acting under and in accordance with the provisions of Article XVIII of the Constitution has adopted a charter. By the terms of Section 1 of the charter it is provided that the city shall have all powers of local self-government and home rule, and all other powers possible- for a city to have under the constitution of Ohio.

Certain fundamental or basic considerations are necessary in the determination of this case.

The right to impose taxes, by a long line of decisions, both state and federal, is within the conceded powers of sovereignty. In truth, experience teaches us that the exercise of this power is the highest and most necessary attribute of government. Without it government must cease to exist among men, and as a substitute we would return to the primeval method of levying tribute by brute force.

In both the federal and state governments of the United States the exercise of this authority has been confided by written constitutions to the legislative departments.

In our own state it has been decided in numerous cases that this grant of power is conferred on the legislative branch of the state government by Section 1, Article II of the Constitution.

It has been likewise held that this authority is full, adequate and complete, limited only, if at all, by other sections of the same instrument.

The principle may be safely said to be established that the legislative department may enter and occupy any field of taxation, unless the constitution has expressly or by necessary implication forbidden it.

We must look to Article XII, which has to do with the general subject of finance and taxation, for any such limitation of power.

Section 1 of this article prohibits the levy of any poll tax and the requirement of service of any kind or character which shall be the subject of commutation in money.

Section 2 of the same article provides for the method and manner of levying taxes, being the well-known uniform-rule section, and has application to taxes on property only.

Section 7 of this article is a new product, and is in no sense a limitation of power, being rather a special grant, and has to do with taxation on inheritances.

Its incorporation in the constitution may be said to have been induced by the decision of this court in the case of State, ex rel., v. Ferris, Judge, 53 Ohio St., 314, and to make perfectly clear not so much that the general assembly might provide for the levy of taxes on the right to receive inheritance, but that such tax might be of a graduated or progressive type, and, furthermore, that an exemption of the smaller inheritances might be authorized.

Section 8 of the same article, providing for the taxation of incomes., for the same reason cannot be said to be a limitation of power, nor can it be said to be equivalent to a conclusion that without such express grant incomes might not be the subject of taxation. It is much more likely that the incorporation of this new section by the constitutional convention of 1912 was occasioned by a desire on the part of its members that the method of levying taxes on incomes should be precisely, similar to taxation of inheritances, in so far as it might relate to graduation of rates and exemptions.

At this point it is proper to say that taxation of incomes or inheritances is not the imposition of direct taxes on property per se, but is rather in the nature of an excise tax.

This is now almost the universal conception of such method of taxation. The only departure from this view is to be found in the decision of the supreme court of the United States, Pollock v. Farmers’ Loan & Trust Co., 158 U. S., 601, the celebrated case in which the income tax sections of the Wilson tariff bill were held unconstitutional by a vote of five to four, the majority opinion holding that the tax was laid on property directly, the minority contending that the tax was indirect and more in the nature of an excise tax.

Section 10 of Article XII of the new Ohio Constitution declares that laws may be passed providing for excise and franchise taxes and for the imposition of taxes upon the production of coal, oil, gas and other minerals.

It is to be concluded that the incorporation of this new section in the constitution was to make certain the authority of the general assembly to levy tax on the specified minerals named, for certainly in view of the legislation and construction thereof by the supreme courts of both Ohio and the United States no express grant of power was required in order to sustain either excise or franchise taxation.

A majority of this court are of the opinion that there is no constitutional limitation resting upon the authority of the general assembly to levy tax on property of. every kind and character, except that it must be uniform and according to its true value in money. Nor is there even this limitation on its power to provide for the levy of taxation on incomes, inheritances and franchises, including the imposition of excise taxes.

We are likewise of opinion that the power to levy taxes on these several subjects comes from the grant in Section 1, Article II, and that there was no necessity for the inclusion in the constitution of new Sections 7, 8 and 10, Article XII, except for the purpose of providing for the graduated method of levying.such taxes and for the permissive feature of exemption of the lesser inheritances and incomes.

Any and all uncertainty as to the power of the general assembly to levy an occupational tax has been removed by the express grant of power in the newly incorporated Section 10, Article XII of the Constitution.

A tax on occupations is an excise tax, and has been so recognized by the most eminent authority.

For instance, Judge Cooley, in the 7th edition, of his treatise on constitutional law, page 680, defines excises as “Taxes laid upon the manufacture, sale, or consumption of commodities within the country, Upon, licenses to pursue certain occupations, and upon corporate privileges.,”

This definition was employed in the case of Maine v. Grand Trunk Ry. Co., 142 U. S., 217, by Mr. Justice Field, with the added comment that “it is used more frequently, in this country, in the latter sense than in any other.”

It was likewise employed in the case of Pollock v. Farmers’ Loan & Trust Co., supra.

It was reemployed by Mr. Justice Day in Flint v. Stone Tracy Co., and associated cases, 220 U. S., 107. These cases were actions to test the constitutionality of the federal corporation tax law-passed by congress in 1911.

The opinion by Judge Day in these cases clearly establishes the right of congress to levy a special tax on business under the general grant to congress by the federal constitution of the power to levy excise taxes.

That the power to exercise this form of taxation rests with the general assembly, both by general and special grant, there is no possible doubt.

An occupational tax is in no sense a tax upon property, but is well understood to be a tax on the , right to carry on trade or to transact business.

It is possible that the imposition of such taxes may in certain instances be oppressive, but the same general objection can be made to taxation in any form. We must ultimately depend on the fairness and good sense of the lawmaking power.

Chief Justice Marshall, in the famous case of M’Culloch v. Maryland, 4 Wheat., 428, observed: “The people of a State * * * give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse.” '

Having concluded that the state, through the agency of the general assembly, may constitutionally impose an occupational tax, the next inquiry is: Can the city of Cincinnati, through the agency of its legislative body, exercise the same power ?

Whatever power the city of Cincinnati possesses in this respect comes in the first instance not from the general assembly but from the constitution itself. Section 3, Article XVIII, provides that municipalities shall have authority to exercise all powers of local self-government.

Ignoring for the moment the provision found in Section 13, Article XVIII, to the effect that laws may be passed to limit the power of municipalities to levy taxes for local purposes, etc., we find in Section 3, Article XVIII, as complete a grant of power as, the general assembly has received in Section 1, Article II. There can be no doubt that the grant of authority to exercise all powers of local government includes the power of taxation, for without this power local government in cities could not exist for a day. It is a known fact that the necessary expense incident to the maintenance of the government of a modern city transcends all other forms of governmental expense.

The constitution recognizing the necessity of this grant of power conferred it on municipalities, subjecting them only to the staying hand of the general assembly in respect to its limitation.

It is not necessary for us now to determine the prohibitive force of the limitation feature of Section 13, Article XVIII — whether it could be invoked to prevent the levying by a city of an excise tax and by laws of an inhibitory character control the subjects of taxation available for municipalities, or whether the limitation contemplated simply the amount of the rate of taxation on property.

It is enough to say that the general assembly has not expressly limited the authority of municipalities to levy an occupational tax, nor has it impliedly limited such authority by invading the field on its own account.

It is possible, of course, that the interesting question whether both state and municipality may occupy the same field of taxation at the same time, may some day be presented to the courts for their determination.

An analogy can be found in the possibility of both state and nation levying an income tax. The present federal income tax bears heavily on our people, and yet, since our constitution authorizes the levying of an income tax for the purpose of raising state revenues, could the fact that the federal government has first occupied the field operate to preempt it and thus defeat the state in the exercise of its constitutional power in this respect?

It may be said in this connection that it is clearly to be implied from the constitution that municipalities are without power to levy an income or inheritance tax.

This implication necessarily arises from the language of Section 9, Article XII, where we find mandatory provision to the effect that “not less than fifty per centum of the income and inheritance taxes that' may be collected by the state shall be returned to the city, village or township in which said income and inheritance tax originate.”

It would seem quite certain, then, that the state alone can initiate taxation of this character.

It is to be observed that no provision for any divisional participation is made in the constitution as to excise and franchise taxation, nor for taxes upon the production of mineral products. It does not follow, however, that the failure of the constitution to provide for such division would operate to render invalid an act of the general assembly imposing occupational taxation throughout the state, requiring a return by the state to the city, township or village where the tax originated of fifty per centum of the amount thereof.

Reverting to the question of the power of Cincinnati to levy occupational taxes it is our conclusion that an ordinance of that character is a valid exercise of its legislative power, and unless and until the state itself invades the field, or expressly interdicts the exercise of the power, the authority of the city of Cincinnati to utilize such subjects of taxation must be upheld.

Writ allowed.

Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.

Jones, J., dissents from second and third propositions of the syllabus and from the judgment.