Opinion · Ohlaw Ohio
STATE EX REL. v. DEFENBACHER, 164 Ohio St. 142 (1955)
128 N.E.2d 59
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1955-07-27
- Topic
- general
STATE EX REL. v. DEFENBACHER, 164 Ohio St. 142 (1955) 128 N.E.2d 59 THE STATE, EX REL. DICKMAN, A TAXPAYER, ET AL., APPELLANTS v. DEFENBACHER,DIR., ET AL., APPELLEES. No. 34194Supreme Court of Ohio.
Citator
UpLaw has not yet analyzed STATE EX REL. v. DEFENBACHER, 164 Ohio St. 142 (1955). The absence of a flag is not a finding that it is good law.
STATE EX REL. v. DEFENBACHER,164 Ohio St. 142(1955)
128 N.E.2d 59
THE STATE, EX REL. DICKMAN, A TAXPAYER, ET AL., APPELLANTS v. DEFENBACHER,
DIR., ET AL., APPELLEES.
No. 34194
Supreme Court of Ohio.
Decided July 27, 1955.
1. An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.
2. Where the General Assembly of Ohio enacts legislation providing for the appropriation of funds to certain veterans organizations for the public purpose of "the rehabilitation of war veterans and for the promotion of patriotism," and the release of such funds to the named organizations is made dependent upon the filing, by each, of a semiannual report of the expenditure of such appropriated funds for the prior six months to the state controlling board, this court cannot find that such legislation is unconstitutional.
The relators, appellants herein, originally brought this action in the Common Pleas Court of Franklin County on behalf of themselves and other taxpayers of the state of Ohio, seeking to enjoin the respondent state officers from paying to the respondent veterans organizations certain moneys which were appropriated to the said veterans organizations for the biennium beginning July 1, 1953, through June 30, 1955, by Amended House Bill No. 10 of the 100th General Assembly. This appropriation bill grants the following designated veterans organizations specific amounts as follows:
American Legion of Ohio $72,375.00 Department of American Veterans of World War II $14,475.00 Disabled American Veterans of World War II $72,375.00 83rd Division of A.E.F. Veterans' Association $ 482.00 Ohio Rainbow Division $ 4,826.00 United Spanish War Veterans $23,160.00 37th Division A.E.F. Veterans' Association $ 5,790.00 Veterans of Foreign Wars $72,375.00Page 143
The bill further provides:
"The appropriations made in this act to the Department of American Veterans, Disabled American Veterans-Department of Ohio, 37th Division A.E.F. Veterans' Association, Ohio Rainbow Division, Veterans of Foreign Wars, 83rd Division A.E.F. Veterans' Association, American Legion of Ohio and United Spanish War Veterans, are for rehabilitation of war veterans and for the promotion of patriotism. These appropriations are made subject to reports by each of these organizations semiannually to the state controlling board and no release of funds for any six-month period shall be made until the state controlling board has received a report of the expenditures made from these appropriations for the prior six-month period."
The petition alleges that the relators are taxpayers and citizens of the state of Ohio; and that respondent state officers are proposing to release official funds of the state to respondent private veterans organizations, pursuant to appropriations made by Amended House Bill No. 10 of the General Assembly of Ohio, for the fiscal biennium 1953-1955.
It is alleged that the respondent veterans organizations are private organizations, organized for private purposes, conducted privately and have memberships determined by the organizations themselves.
It is alleged that the releasing of such funds was in violation of the Constitution of Ohio and constituted an expenditure of public funds for private purposes and the taking of private property; that said appropriations were in direct violation of the Constitution of the state of Ohio, prohibiting the giving or lending of the state's credit to private individuals or organizations; and that the appropriation act in question is an unlawful delegation of the legislative power of the General Assembly of Ohio to the respondent veterans organizations.
The petition alleges further that demand had been made on the respondent state officers not to pay out this fund to said organizations, but that said demand had been refused.
Answers of the respondents affirmatively allege that they are and have been accredited to appear and practice before the Veterans Administration and to represent before it veteransPage 144of all the wars of our country and their dependents. (The Veterans Administration administers and handles all the rehabilitation facilities of the federal government for veterans, including financial compensation for the wounded and disabled.)
Respondents answer further that the funds appropriated to each by the General Assembly of Ohio are for a public purpose, and that said state funds are not under the control of the various respondent veterans organizations or their officers, as such, but only so that the provisions of the act governing and controlling the expenditure of said appropriations may be carried out.
Respondents answer further that the funds appropriated by the state are not commingled with the dues and other funds of these veterans organizations, but the state funds are kept in separate bank accounts and a separate set of books maintained to account for the funds appropriated for the uses and purposes set out in the statute.
The respondents American Legion, Department of American Veterans, Veterans of Foreign Wars and Disabled American Veterans answer further that each is chartered by act of Congress and that eligibility for membership in each of said organizations is determined by act of Congress.
Respondents answer further that the funds appropriated are under the supervision of the state of Ohio; and that each of the respondent veterans organizations is required to report each six months to the controlling board setting out how expenditures of the funds for the previous six months have been made.
Each answer contains a general denial.
The Court of Common Pleas held that the appropriations complained of in the petition are unconstitutional and enjoined their payment.
The Court of Appeals for Franklin County dismissed the petition, denied the prayer, and held the appropriations to be valid.
The cause is now before this court upon appeal by relators on a constitutional question and also by the allowance of a motion to certify.Page 145
The judgment of the Court of Appeals is as follows:
"This cause coming on to be heard on appeal on questions of law and fact, appellees' motion to dismiss having been withdrawn, and upon the record below as stipulated by the parties hereto in accordance with the stipulation filed herein, the court finds that the appropriations in this case are valid. It further appearing to the court that by such stipulation the parties hereto have agreed that the last quarter-annual installment of the appropriations to the appellant veterans organizations in issue in this case which would ordinarily be available for payment on April 1, 1955, will not be paid to or received by said veterans organizations until final disposition of this case on appeal to the Supreme Court of Ohio, it is hereby ordered, adjudged and decreed that the petition be and the same is hereby dismissed, the judgment and findings of the Court of Common Pleas be and hereby are held for naught, that the permanent injunction issued by the court below be and the same is hereby dissolved, and the relief prayed for by plaintiff appellee in this case is hereby denied and the judgment herein is hereby entered in favor of defendants appellants."
The question of the constitutionality of the enactment by the General Assembly having been raised in the Court of Appeals and the court having held that the legislation providing for the appropriations in this case is valid, the Court of Appeals necessarily determined that such legislation is constitutional.Page 146
Section 2, Article IV of the Constitution, entitled "The Supreme Court," provides certain limitations in determining constitutional questions. Those limitations are as follows:
"No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges,except in the affirmance of a judgment of the Court ofAppeals declaring a law unconstitutional and void." (Emphasis added.)
The limitation on this court was discussed as follows by Nichols, C.J., in the case ofState, ex rel. Turner, Atty.Genl., v.United States Fidelity Guaranty Co.,96 Ohio St. 250,258,117 N.E. 232:
"In this connection it is proper to observe that under the present Constitution the Supreme Court of Ohio has been clearly and distinctly directed by the people of Ohio that the power to set aside laws passed by the General Assembly, over which the people exercise the veto power through the referendum, is to be exercised with the greatest care. Not only does the long-established rule laid down inCassv.Dillon,2 Ohio St. 607, still obtain in all its restrictive effect, but the privilege of exercising the vast responsibility of this power has been hedged about with the most positive and drastic limitations. In Section 2, Article IV of the Constitution, the very section which gives the court its existence, it is provided that `no law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges.' Much significance is to be attached to the inclusion of this provision in the judicial article. It represents, as is known of all men, a compromise between those of our people who sought to deny to the court the right to exercise the power at all and those who felt that the Supreme Court should be unhampered by any such restriction. Of all the states of the Union the Constitution of ours alone has thus expressly granted this great power to its highest court, and we are reminded that it should be exercised with the greatest possible care and reserve.
"The power was exercised almost from its beginning by the Supreme Court of Ohio, but always, until 1913, by and through a claim of an implied grant of power. A vast amountPage 147of discussion, with a display of much learning, has been had in recent years with regard to the exercise of this implied power, both as to the state and federal courts."
A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. This court has held enactments of the General Assembly to be constitutional unless such enactments are clearly unconstitutional beyond a reasonable doubt.
Paragraph four of the syllabus inWilliamsv.Scudder,102 Ohio St. 305,131 N.E. 481, states:
"The legislative judgment in this behalf will not be nullified except when it clearly appears that there has been a gross abuse of such discretion in undoubted violation of some state or federal constitutional provision."
InState, ex rel. Durbin, v.Smith, Secy. of State,102 Ohio St. 591,133 N.E. 457, the court, in aper curiamopinion, said:
"In the recent case ofCity of Xeniav.Schmidt,101 Ohio St. 437, this court declared: `1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body. 2. That presumption of validity of such legislative enactment cannot be overcome unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution.' In the opinion by Wanamaker, J., at page 443, the opinion of John Marshall, C.J., in the case ofFletcherv.Peck, 6 Cranch, 87, * * * is quoted with approval as follows: `The question, whether a law be void for its repugnancy to the Constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.'Page 148
"And inCity of Xeniav.Schmidt, at page 444, Judge Wanamaker again quotes from the opinion of Justice Washington in the case ofOgdenv.Saunders, 12 Wheat., 213 (1827), as follows: `If I could rest my opinion in favor of the constitutionality of the law * * * on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt. This has always been the language of this court, when that subject has called for its decision * * *.'
"Quoting again from the opinion of Chief Justice Waite inSinking Fund Cases,99 U.S. 700(1878): `Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.'
"Also quoting from the opinion of Chief Justice Shaw in the case ofWellington et al., Petitioners, 16 Pick., 87: `To repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation * * * [they will] never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.'
"Quoting again from the opinion of Justice Ranney in the case ofCincinnati, Wilmington Zanesville Rd. Co.v.Clinton CountyCommissioners,1 Ohio St. 77, * * * [Wanamaker, J.] approved this language: `But while the right and duty of interference in a proper case, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority * * * and it is only when manifest assumption of authority, and clear incompatibility between the Constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case. * * *'Page 149
"This same principle was approved and applied in the recent case ofPohlv.State* * * [102 Ohio St. 474], in which all members of this court concurred. It is there stated that `if under any possible state of facts the sections [of the law] would be constitutional, this court is bound to presume that such facts exist.'"
Any doubt as to the constitutionality of a statute will be resolved in favor of its validity.State, ex rel. Doerfler, Pros.Atty., v.Price, Atty. Genl.,101 Ohio St. 50,128 N.E. 173.
Every reasonable presumption will be made in favor of the validity of a statute.Statev.Parker,150 Ohio St. 22,80 N.E.2d 490;State, ex rel. Mack, Judge, v.Guckenberger, Aud.,139 Ohio St. 273,39 N.E.2d 840, 139 A.L.R., 728.
Turner, J., inWilsonv.Kennedy,151 Ohio St. 485,492,86 N.E.2d 722, said:
"It is the duty of the court where constitutional questions are raised as here to liberally construe a statute to save it from constitutional infirmities.
"In 8 Ohio Jurisprudence, 160, Section 61, it is said:
"`The presumption in favor of the constitutionality of statutes leads to the conclusion that where the validity of an act is assailed, and there are two possible interpretations, one of which would render it valid, and the other invalid, the court should adopt the former so as to bring the act into harmony with the Constitution.'
"In 8 Ohio Jurisprudence, 154, Section 58, it is said:
"`It is a well established canon of construction that every reasonable presumption be indulged in favor of the constitutionality of a statute.'"
In the instant case, the constitutional question with which the Court of Appeals was necessarily concerned, in making the determination that the legislation passed by the General Assembly involving the appropriations for the named veterans organizations is a valid and constitutional enactment, was the judicial construction of Section4, ArticleVIIIof the Constitution of Ohio, which reads as follows:
"The credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation whatever * * *."Page 150
In the case ofState, ex rel. Leaverton, v.Kerns, Aud.,104 Ohio St. 550,554,136 N.E. 217, the same issue was raised as to state aid to another private association, to wit, a county agricultural society. The court said:
"The sections of the Constitution above referred to forbidding financial aid, or the loan of the credit of the state, relate to private business enterprises, and, while they would forbid furnishing financial aid to any agriculturalbusiness, an agricultural fair is upon an entirely different basis, being a public institution designed for public instruction, and advancement of learning and the dissemination of useful knowledge."
A most illuminating statement on the subject of public purpose and the meaning of that term in the law of Ohio is found in the case ofWalker, Solr., v.City of Cincinnati,21 Ohio St. 14, 8 Am. Rep., 24, where Scott, C.J., said:
"On this subject we cannot do better than to adopt what is so well said by Judge Cooley, in his treatise on `Constitutional Limitations,' pages 128, 129, where, in speaking of limitations upon legislative authority, he says: `* * * But what is for the public good, and what are public purposes, and what does properly constitute a public burden,are questions which the Legislaturemust decide upon its own judgment, and in respect to which it isvested with a large discretion which cannot be controlled by thecourts, except perhaps where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legislative in its character,the courts can enforce onlythose limitations which the Constitution imposes, and not thoseimplied restrictions, which, resting in theory only, the peoplehave been satisfied to leave to the judgment, patriotism, andsense of justice of their representatives.'"
InState, ex rel. Pugh et al., Trustees, v.Sayre, Aud.,90 Ohio St. 215,107 N.E. 512, the Supreme Court again approved an allocation of public money to a private corporation for disbursement by it. The case arose from an action in mandamus instituted by the Franklin County Law Library Association to compel the county auditor to issue warrants or orders for the payment of certain sums to the law library association. The associationPage 151was a private corporation. The Supreme Court held that the order should issue and that funds arising from fines, etc., should be paid by the county treasurer to said private corporation to maintain the law library which was used by all officers exercising judicial functions in the county.
It has been held on numerous occasions by the courts of this state and by the courts of other states that Section 4, Article VIII of our state Constitution and similar provisions of the Constitutions of other states enjoin the making of appropriations for private enterprises, but that the appropriation of public money to a private corporation to be expended for a public purpose is a valid act of the legislative body.
The ultimate question then is, as was presented to the Court of Appeals, whether the enactment by the General Assembly of Ohio of legislation appropriating funds for the named veterans organizations provides for the expenditure of the funds for a public purpose.
As that court found the legislation to be a valid enactment, the court necessarily answered the question in the affirmative.
The following facts support that conclusion.
In the act passed by the Legislature, known as Amended House Bill No. 10 of the 100th General Assembly, is the following provision:
"The appropriations made in this act to the Department of American Veterans, Disabled American Veterans-Department of Ohio, 37th Division A.E.F. Veterans' Association, Ohio Rainbow Division, Veterans of Foreign Wars, 83rd Division A.E.F. Veterans Association, American Legion of Ohio and United Spanish War Veterans, arefor rehabilitation of war veterans and for thepromotion of patriotism. These appropriations are made subject toreports by each of these organizations semiannuallyto the state controlling board and no release of funds for any six-month period shall be made until the state controlling board has received a report of the expenditures made from these appropriations for the prior six-month period." (Emphasis added.)
Thus the appropriations bill itself contains the public purpose, for which the appropriations were made to the veteransPage 152associations, in the words,"for the rehabilitation of warveterans and for the promotion of patriotism."
Eligibility for membership in the American Legion, Department of American Veterans, Disabled American Veterans and Veterans of Foreign Wars is controlled and prescribed by act of Congress.
Membership in the 37th Division Association, Ohio Rainbow Division and 83rd Division of A.E.F. Veterans Association is confined to those honorably discharged soldiers who served in those Ohio organizations during the wars of our country.
The Veterans Administration, created by act of Congress, has its main office in Washington, D.C., and maintains regional offices throughout the country. It is the duty of this agency of the federal government to make available to handicapped veterans and dependents of veterans the benefits granted to them by congressional enactments. To the states is left the devising of the means of presenting the claims of the veterans of each state to the Veterans Administration.
Section 430, Title 38, U.S. Code, sets up generally the framework and duties of the Veterans Administration. It is in part as follows:
"The Administrator of Veterans' Affairs shall establish a central office in the District of Columbia, and such regional offices and suboffices, not exceeding 100 in number, within the territory of the United States * * *. Such regional offices and suboffices may, subject to final action by the administrator in case of an appeal, and under such rules and regulations as may be prescribed by the administrator, exercise such powers for hearing complaints and for examining, rating, and awarding compensation claims, granting medical, surgical, dental, and hospital care, convalescent care, and necessary and reasonable aftercare, granting vocational training and all other matters delegated to them or some of them, by the administrator as could be performed lawfully under this chapter by the central office."
Section 551, Title 38, U.S. Code, in part provides:
"* * * no claim agent or attorney except the recognized representatives of the American Red Cross, the AmericanPage 153Legion, the Disabled American Veterans, and Veterans of Foreign Wars, and such other organizations as shall be approved by the Administrator of Veterans' Affairs shall be recognized in the presentation or adjudication of claims * * *."
The respondents Department of American Veterans, American Legion, Disabled American Veterans and the United Spanish War Veterans are also accredited to appear and practice before the Veterans Administration in the presentation or adjudication of claims of veterans.
The record in this case indicates that there are 1,200,000 veterans of the wars of our country in Ohio. The veterans organizations provide service officers who are specially trained in rehabilitation service which is made available to all veterans regardless of membership. In addition to obtaining financial compensation for wounded or disabled veterans, the rehabilitation service of these veterans organizations is used to secure benefits for the widows and children of deceased veterans, in the placing of veterans in hospitals, in vocational training, in college training, in outpatient care, etc.
Some states have set up what may be called veterans commissions, and an overall appropriation is made by the state involved to that commission.
The biennial appropriation of California under such a plan was $5,687,000.
Wisconsin with a similar plan had a biennial appropriation of $4,167,200.
The total appropriation under the appropriations bill for the veterans organizations of Ohio is $265,858.
Ohio has no agency except these respondent organizations adequate to provide facilities for the presentation of the claims of Ohio's veterans to the Veterans Administration. These veterans organizations for over a generation have performed that function for the state, and have been doing largely the same work that costs some other states four or five million dollars, as performed by veterans commissions for a similar public purpose of "rehabilitation of war veterans and for the promotion of patriotism."
In conclusion, in the words of Chief Justice John Marshall of the United States Supreme Court inFletcherv.Peck, supra:Page 154
"The question, whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in adoubtful case. * * * The opposition between the Constitution andthe law should be such that the judge feels a clear and strongconviction of their incompatibility with each other." (Emphasis added.)
And in the words of Justice Washington of the United States Supreme Court inOgdenv.Saunders, supra:
"If I could rest my opinion in favor of the constitutionality of the law * * * on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity,until its violation of the Constitution is provedbeyond a reasonable doubt." (Emphasis added.)
And in the words of Chief Justice Waite of the United States Supreme Court inSinking Fund Cases, supra:
"Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shownbeyond arational doubt." (Emphasis added.)
In the present case, the Court of Appeals for Franklin County found that the legislation providing for the appropriations to the named veterans organizations is a valid enactment of the General Assembly of Ohio. The effect of the judgment was to hold the enactment constitutional.
This court, under the limitations imposed by the Constitution where the Court of Appeals has held a statute to be constitutional, cannot find such statute to be unconstitutional if two or more of the judges of this court have doubt as to its unconstitutionality.
Since a majority of the judges of this court have doubt as to the unconstitutionality of the legislation before us for consideration, it must be, and hereby is, held valid.
It follows that the judgment of the Court of Appeals should be, and it hereby is, affirmed.Judgment affirmed.Page 155
STEWART, BELL and TAFT, JJ., concur.
WEYGANDT, C.J., HART and GRIFFITH, JJ., dissent.
GRIFFITH, J., of the Seventh Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J., pursuant to Section 2, Article IV of the Constitution.
TAFT, J., concurs in the foregoing concurring opinion.
It may be conceded that the funds in question are public funds and must be expended for a public purpose. 42 American Jurisprudence, 756, Section 57, and cases cited. And "public purpose" is synonymous with "governmental purpose."Stanleyv.Jeffries, Treas.,86 Mont. 114,284 P. 134, 70 A.L. R., 166;Veterans of Foreign Warsv.Childers, Aud.,197 Okla. 331,171 P.2d 618. It may be conceded also that the veterans organizations to which the appropriations in question were made are private corporations and not governmental entities. SeeStatev.Johnson,170 Wis. 218,175 N.W. 589,594, 7 A.L. R., 1617.
A fundamental question then arises. May public funds derived from public taxation be appropriated to private instrumentalitiesPage 156not by way of payment of a private debt but for expenditure by them for the benefit of their own members, however laudable such expenditure may be?
In the early case ofAuditor of Lucas Countyv.State, ex rel.Boyles,75 Ohio St. 114,78 N.E. 955, 7 L.R.A. (N.S.), 1196, this court held:
"The act entitled `An act to provide relief for worthy blind,' * * * which provides that all male blind persons over the age of 21 years, and all female blind persons over the age of 18 years, who have been residents of the state for five years and of the county for one year and have no property or means with which to support themselves, shall be entitled to and receive not more than 25 dollars per capita quarterly from the county treasury, is unconstitutional for the reason that it requires the expenditure for a private purpose of public funds raised by taxation."
In that case, Judge Summers said:
"The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization and it is not doubted that the legislation under consideration was inspired by beneficent if not enlightened motives. This state has provided institutions for the education of the blind; for feebleminded youth; for honorably discharged soldiers, sailors and marines; a home for soldiers' and sailors' orphans; for the care and treatment of the insane; an asylum for epileptics and epileptic insane; a boys' industrial school; a girls' industrial home; for the establishment of homes of the friendless; a sanitarium for consumptives; and an institution for the treatment and education of deformed and crippled children. The object of these institutions is sufficiently indicated by their designation, and may be stated to be, generally, to provide places and means where their afflictions may be relieved, or where they may be taught and trained so that they may be self-supporting, or less likely to become a burden on the state, or where their physical wants may be supplied at the public expense. But it does not follow that it would be either wise or constitutional to select out a class, having some particular physical infirmity, and then confer a bounty upon individuals of that class. If a bounty may be conferred upon individuals of onePage 157class, then it may be upon individuals of another class, and if upon two, then upon all. And if upon those who have physical infirmities, then why not upon other classes who for various reasons may be unable to support themselves? And if these things may be done, why may not all property be distributed by the state?
"* * *
"* * * The act does not direct that the payments shall continue during the lifetime of the beneficiary, nor does it limit the time, nor provide that payments shall cease with the needs of the donee, or provide for any subsequent inquiry. It is an indeterminate gratuitous annuity, a gift pure and simple, and, being so, the Legislature is without authority to make it from the public funds. Other provisions of the act are open to criticism, but as they go to the wisdom of the legislation rather than to the power to enact it, they will not be noticed.
"It may be said that funds used for the care of the poor are used for a public purpose, and that moneys used under the provisions of this act will subserve a public purpose for the reason that they will enable many blind persons, aided by their own efforts or those of their friends, to support themselves, and thus to escape becoming a public charge. The wisdom of the legislation is not questioned: the power of the Legislature to so enact is the question presented here, and that an incidental public benefit is not sufficient to save the legislation has also been decided in the case just referred to [Loan Assn.v.Topeka, 20 Wallace, 655]."
There are certain cases where the appropriations of public funds were made for the erection of soldiers monuments, memorial buildings and the like to symbolize the soldier's spirit of sacrifice and to stimulate patriotism, and such expenditures have been approved by the courts. But it will be noted that such structures are not given away to private persons. Title and possession remain in the state or county erecting them or in the public trustees for the governmental unit erecting them, and they remain available for the use and enjoyment of all the members of the public on the same basis. Cases of this type arePeoplev.Westchester County Natl. Bank,231 N.Y. 465,132 N.E. 241, 15 A.L.R., 1344;Opinion of the JusticesPage 158to the Senate,211 Mass. 608,98 N.E. 338;Barrowv.Bradley,Mayor,190 Ky. 480,227 S.W. 1016;Hillv.Roberts, Governor,142 Tenn. 215,217 S.W. 826. And courts generally frown upon such construction for the exclusive use of army posts or private soldiers organizations, since they are not public bodies or is their use of such construction a public one.Kingmanv.City ofBrockton,153 Mass. 255,26 N.E. 998, 11 L.R.A., 123.
The record discloses that all the defendant organizations have a limited membership of private persons, membership being controlled by the organizations themselves, and admission thereto being by the approval of the organization membership. They are fraternal organizations in character. In case of most of the organizations, the money received from the state is in large part devoted to private organizational purposes. In every one of such organizations the reports show expenses of state headquarters paid from state appropriations. The report of the 37th Division A.E.F. Veterans' Association recites that the entire amount received by it was spent for salaries. The record shows that the Disabled American Veterans of World War II had accumulated a $50,000 surplus from funds received from the state. The reports of the American Legion of Ohio and Veterans of Foreign Wars show an expenditure of an amount of money equal to that received from the state for the payment of salaries and expenses to employees of such organizations whose duty it is to assist veterans and their families in filing and prosecuting claims before the Veterans Administration. For the most part the reports of other organizations show that funds received were primarily spent for the general purposes of the organizations, and most of the organizations to which appropriations were made did not have any employees working at the Veterans Administration. No control was provided for by law or exercised as to how the organizations were to spend the money appropriated to them by the state. The purposes for which expenditures were made were left entirely to the organizations themselves. No audits of any kind were made or provided for, there was no audit of any kind ever attempted by state officers, and no investigation or check was made with respect to the reports filed with the board of control.Page 159
The brief of the veterans organizations in the instant case poses the question: May the General Assembly constitutionally delegate to private organizations the expenditure of public funds? It answers the inquiry in the affirmative and cites two cases, decided by this court, as supporting that answer. The first is that ofState, ex rel. Leaverton, v.Kerns, Aud.,104 Ohio St. 550,136 N.E. 217, an action in mandamus to require the auditor of Highland County to issue a warrant to the relators in the sum of $574.22 claimed to be due the Leesburg-Highland Agricultural Company under the provisions of Section 9880-1, General Code, which authorized an award of two cents for each inhabitant of the county to a nonprofit agricultural society which annually held an exhibition since 1914. The statute contained a number of specific qualifying limitations concerning the operation of the exhibition and the expenditure of the funds and required a certificate from the president of the State Board of Agriculture that the law had been complied with. This court specifically held:
"The aid provided by Section 9880-1, General Code, is not for the purpose of furnishing financial assistance to a private enterprise, nor for lending the credit of the state thereto, but, on the contrary, is in aid of a public institution designed for public instruction, the advancement of learning and the cause of agriculture, and is not in violation of Sections4and6, ArticleVIIIof the Ohio Constitution."
The second case above referred to is that ofState, ex rel.Pugh et al., Trustees, v.Sayre, Aud.,90 Ohio St. 215,107 N.E. 512, an action in mandamus by the trustees of the Franklin County Law Library Association to compel the county officers to turn over to such association for the support of the library certain funds not arising from public taxation but from certain fines collected by the police court of the city of Columbus. This was authorized by Sections 3054 to 3058, inclusive, General Code, which made provision that such library should be accessible to all judicial officers of the courts of the county. This court specifically held:
"Section 6 of Article VIII of the Constitution is applicable to the taxing power of the state and designed for the protection of moneys resulting from its exercise, and it does not prohibitPage 160the devotion of `fines and penalties assessed and collected by the police court for offenses and misdemeanors prosecuted in the name of the state' to the aid of a law library association, whose library is subject to use by all officers exercising judicial functions in the county in which such police court sits such library being a corporation not for profit."
Those two cases are to be distinguished from the case at bar in three vital respects:
1. The appropriation of the funds in each case was authorized by specific legislation.
2. The recipients of the funds received them not for the use and benefit of their own members but for the benefit of the public at large.
3. The funds appropriated and received were in fact in payment for services rendered directly to the public by the recipients.
Heretofore, in providing aid to the soldiers of the state, the General Assembly of Ohio has always regarded as necessary legislation to authorize the appropriation of public funds for that purpose and to provide for the distribution of such funds through governmental channels. The General Assembly through the enactment of Section517.30, Revised Code, has provided that "whenever there is presented to the Board of Township Trustees, a petition signed by not less than 30 per cent of the electors of such township as shown by the last preceding general election held therein, requesting the erection of a suitable monument to commemorate the soldiers and sailors who died in the service of the United States or of this state, such board may, by a majority vote, appropriate and expend not more than 500 dollars from the township funds for the purpose of erecting such monument, according to plans and specifications furnished or approved by such board."
Sections345.01to345.18, inclusive, Revised Code, provide a plan whereby the council of a municipality, the trustees of a township or the county commissioners of a county may purchase a site and erect and equip a memorial building to commemorate the services of all members and veterans of the armed forces of the United States, levy a tax for the purposes of such acquisition and construction, appoint a board of trusteesPage 161to control and operate the memorial for the benefit of the people of the entire territorial unit "for community, civic and patriotic purposes," and permit its occupancy by any society or association of soldiers or any historical society with or without rental.
By the authority of the General Assembly, Ohio has a system of veterans relief administered by a governmental body for each county, known as the Soldiers' Relief Commission appointed by a judge of the Common Pleas Court of the county. See Sections5901.01to5901.99, inclusive, Revised Code. Under this act it is the duty of the commission to ascertain the needs of indigent soldiers and members of their families, and the county commissioners are required to make a tax levy not to exceed five-tenths of a mill per dollar to provide funds for such relief. The act requires that the names of persons receiving such relief and the amounts thereof be listed as a public record. The act provides also for the burial of indigent soldiers and for the care of cemeteries and the graves of such soldiers.
By Sections5913.18to5913.99, inclusive, Revised Code, there is established a state department of soldiers' claims under the supervision of the Adjutant General of the state. It is managed and supervised by a state commissioner of soldiers claims appointed by the Governor. It is his duty to "furnish necessary instructions and advice to the soldiers, sailors, and marines of the state, their heirs or legal representatives, respecting their claims against the United States for pensions, bounty, back pay or otherwise, by reason of military or naval service, assist in the collection of such claims, and perform such other duties pertaining to his office as the Adjutant General requires."
In almost every case where the question of the authority to appropriate public funds to the use and benefit of war veterans is involved the question of the constitutionality of the legislation purporting to authorize the appropriation of such funds is the issue before the court. In all such cases in which such legislation was upheld the statutes specified the purposes for which such public funds shall be used and specifically set out the limitations on such use. Here, there is no authorizing legislationPage 162for the appropriations as there is in every other instance where public funds are authorized to be used for the benefit of the soldiery of the state, as above pointed out.
After a somewhat diligent search, I believe no case can be found approving the principles approved by the majority opinion and the judgment in this case, where appropriations of public funds are made direct to concededly private corporations or organizations, and not through governmental channels, for the exclusive use and benefit of their soldier members or the exclusive use and benefit of certain other soldiers whom they select. It is my view that the overwhelming weight of judicial authority is to the contrary. Under the circumstances of the instant case, the funds were not appropriated for administration by a public authority, nor are they being devoted to a public use.
On two former occasions the people of Ohio have amended its Constitution to provide for soldiers bonuses. In the first instance, the Constitution was amended to permit the expenditure of $25,000,000 from public tax funds for the payment of bonuses to soldiers of World War I. The Constitution was amended the second time to authorize the issue of bonds in the sum of $300,000,000, payable out of tax funds, for bonuses to World War II veterans, and the present General Assembly is submitting to the people a constitutional amendment to provide funds for bonuses for soldiers of the Korean operation, all to be administered through state governmental channels.
If constitutional amendments are necessary to authorize the payment of such bonuses, certainly the funds here in question can not be lawfully distributed without either a constitutional amendment or an authorizing legislative act with such limitations as will bring such distribution within constitutional requirements.
WEYGANDT, C.J., and GRIFFITH, J., concur in the foregoing dissenting opinion.Page 163