1851. PUBLIC INSTITUTIONS. Arts. VII, VIII. ARTICLE VII. PUBLIC INSTITUTIONS. deaf and dumb. SECTION 1. Institutions for the benefit of the insane, blind, and deaf Insane, blind, and and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly. I Debates, 365, 539, 542, 543; 2 Debates, 340, 349, 700, 821, 843, 861, 870. of benevolent and SEC. 2. The directors of the penitentiary shall be appointed or elected Directors of peniin such manner as the general assembly may direct; and the trustees of tentiary, trustees the benevolent, and other state institutions, now elected by the general other state institutions, how apassembly, and of such other state institutions, as may be hereafter created, pointed. shall be appointed by the governor, by and with the advice and consent of the senate; and upon all nominations made by the governor, the question shall be taken by yeas and nays, and entered upon the journals of the senate. "The first clause of this section is in no way inconsistent, or in conflict, with the provisions of the twenty-seventh section of the second article, but is in entire harmony with it. It in no way qualifies or enlarges the exceptions to the general prohibition of any appointing power by the general assembly therein contained, but leaves that prohibition to operate with full force and The clause of Art. VII, 2, that the directors of the penitentiary shall effect. be appointed or elected in such manner as the general assembly may direct,' and that of Art. II, SEC. 3. The governor shall have power to fill all vacancies that may Vacancies, how occur in the offices aforesaid, until the next session of the general assembly, filled. and, until a successor to his appointee shall be confirmed and qualified. 1 Debates, 549; 2 Debates, 341, 349, 700, 821, 843, 861, 870. ARTICLE VIII. PUBLIC DEBT AND PUBLIC WORKS. 1 SECTION 1. The state may contract debts to supply casual deficits or Public debt. failures in revenues, or to meet expenses not otherwise provided for; but the aggregate amount of such debts, direct and contingent, whether contracted by virtue of one or more acts of the general assembly, or at different periods of time, shall never exceed seven hundred and fifty thousand dollars; and the money, arising from the creation of such debts, shall be applied to the purpose for which it was obtained, or to repay the debts so contracted, and to no other purpose whatever. See Art. VIII, § 3, Note. 1 Debates, 292, 466-472; 2 Debates, 313, 314, 362, 363, 392, 424-426, 810, 837, 861, 870. SEC. 2. In addition to the above limited power, the state may con- Additional, and tract debts to repel invasion, suppress insurrection, defend the state in for what purposes. war, or to redeem the present outstanding indebtedness of the state; but the money, arising from the contracting of such debts, shall be applied to the purpose for which it was raised, or to repay such debts, and to no other purpose whatever; and all debts, incurred to redeem the present outstanding indebtedness of the state, shall be so contracted as to be payable by the sinking fund, hereinafter provided for, as the same shall accumulate. See Art. VIII, § 3, Note; Art. II, § 28, Note 1. 1 Debates, 292, 466, 472; 2 Debates, 312-314, 426, 810, 837, 861, 870. Art. VIII. The state to create no other debt. PUBLIC DEBT AND PUBLIC WORKS. Const. SEC. 3. Except the debts above specified in sections one and two of this article, no debt whatever shall hereafter be created by or on behalf of the state. The natural and obvious meaning of the first three sections of this article applies their limitations to the state alone, and not to her subdivisions. Cass v. Dillon, 2 O. Š., 608; Walker v Cincinnati, 21 O. S., 14-52. The board of public works made contracts on behalf of the state, stipulating to pay yearly, for the period of five years, for materials and repairs of the canals of the state, an amount in the aggregate of $1,375,000. Held: 1. That, except in certain specified cases, no debt of any kind can be created on behalf of the state. 2. That no officers of the state can enter into any contract, except in cases specified in the Constitution, whereby the general assembly will, two years after, be bound to make appropriations either for a particular object or a fixed amount; the power and the discretion, intact, to make appropriations, in general, devolving on each biennial general assembly, and for the period of two years. 3. The contracts of the board of public works creating a present obligation to pay for the period of five years a certain amount, do not come within said constitutional exceptions, and are in contravention of the provisions of Art. VIII, 3, and Art. II, 2. State v. Medberry, 7 O. S., 522. 1 Debates, 292, 466, 472; 2 Debates, 313, 314, 426, 810, 837, 861, 870. SEC. 4. 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; nor shall the state ever hereafter become a joint owner, or er or stockholder. Stockholder, in any company or association in this state, or elsewhere, formed for any purpose whatever. Credit of state. The state shall not become joint own No assumption of debts by the state. Counties, cities, towns, or ized to become It was competent for the legislature, under the Constitution of 1802, to construct works of internal improvement, on behalf of the state, or to aid in their construction by subscribing to the capital stock of corporations created for that purpose, and to levy taxes to raise the means; and by an exercise of the same power, to authorize a county or township to subscribe to a work of that character running through or into such county or township, and to levy a tax to pay the subscription. C. W. & Z. R. R. Co. v. Com. of Clinton Co., 1 O. S., 77; S. & I. R. R. Co. v. North Tp., Ib., 105; Loomis v. Spencer, Ib., 153; Cass v. Dillon, 2 O. S., 608; Thompson v. Kelley, Ib., 647; State v. Com. of Clinton Co., 6 O. S., 280; State v. Van Horne, 7 O. S., 327; State v. Union Tp., 80. S., 394; Paris Tp. v. Cherry, Ib., 564; Treadwell v. Com. of Hancock Co., 11 O. S., 183; State v. Com. of Hancock Co., 12 O. S., 596; Goshen Tp. v. Shoemaker, Ib., 624; Com. of Knox Co. v. Nichols, 14 O. S., 260; Fosdick v. Perrysburg, Ib., 472; Shoemaker v. Goshen Tp., ĺb., 569; Walker v. Cincinnati, 21 O. S., 14-43. 1 Debates, 292, 466, 472; 2 Debates, 313, 314, 426, 427, 810, 837, 861, 870. SEC. 5. The state shall never assume the debts of any county, city, town, or township, or of any corporation whatever, unless such debt shall have been created to repel invasion, suppress insurrection, or defend the state in war. "The clear implications of this section are, that counties, cities, towns, and townships, may create debts to repel invasion, suppress insurrection, or defend the state in war, which the state may assume; and may also create debts for other purposes, which the state is forbidden to assume." Walker v. Cincinnati, 21 O. S., 14-52-Scott, C. J. 1 Debates, 292, 467, 472, 538; 2 Debates, 295, 313, 314, 427, 810, 837, 861, 870. SEC. 6. The general assembly shall never authorize any county, city, ships, not author- town, or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association. stockholders, etc. What the general assembly is thus prohibited from doing directly, it has no power to do indirectly. Taylor v. Com. of Knox Co., 23 O. S., 22. Where public credit or money is furnished by any of the subdivisions of the state named, to be used in part construction of the work which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the municipal control and management of the work when completed, the public money or credit thus used can only be regarded as furnished for or in aid of such parties. Ib. The act of April 23, 1872, to authorize counties, townships, and the municipalities therein named, to build railroads (69 v. 84), authorizes the raising of money by taxation, which is equally applicable to the unlawful purpose of aiding railroad companies and others engaged in building and operating railroads as it is to any lawful purpose, and gives to the officers intrusted with the control and application of the money thus raised no means or power of discrimination as to the lawfulness or unlawfulness of the work or purpose to which it is to be applied, and thus is in contravention of section six, article eight, of the Constitution, and therefore void. 16. "The mischief which this section interdicts is a business partnership between a municipality or subdivision of the state, and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever.. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become stockholders nor furnish money or credit for the benefit of the parties interested therein. Though joint stock companies, corporations, and associations only are named, we do not doubt that the reason of prohibition would render it applicable to the case of a single individual. The evil would be the same, whether the public suffered from the cupidity of a single person, or from that of several persons associated together. As this alliance between public and private interests is clearly prohibited in respect to all enterprises, of whatever kind, if we hold that these municipal bodies cannot do on their own account what they are forbidden to do on the joint account of themselves and private partners, it follows that they are powerless 1851. PUBLIC DEBT AND PUBLIC WORKS. to make any improvement, however necessary, with their own means, and on their own sole account. We may be very sure that a purpose so unreasonable was never entertained by the framers of the Constitution." Walker v. Cincinnati, 21 O. S., 14-54, 55-Scott, C. J. The act of May 4, 1869, "relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants (66 v. 80), authorizing such cities to construct a railroad terminating in and essential to the interests of themselves, and to borrow, as a fund for that purpose, a sum of money not exceeding ten millions of dollars, violates neither the express nor implied prohibitions of this section. Walker v. Cincinnati, 21 O. S., 14, affirming Cin. Sup. C. Rep, 121. The act of March 29, 1867 (64 v. 80), "to authorize the county commissioners to construct roads on petition of a majority of resident land-owners along and adjacent to the line of said road," etc., does not violate this section. State v. Com. of Warren Co., 17 O. S., 558. This section plainly refers to future legislation alone, and the acts it prohibits are not subscriptions under laws existing at the time of the adoption of the new Constitution, but the making of any more such laws. Cass v. Dillon, 2 O. S., 608; State v. Trustees of Union Township, 80. S., 394; Com. of Knox Co. v. Nichols, 14 O. S., 260; State v. Perrysburg, 14 O. S., 472; Thompson v. Kelly, 2 O. S., 647; and see Art. VIII, 4, Note. 1 Debates, 292, 467, 472, 538; 2 Debates, 300-314, 427, 810, 837, 861, 870. SEC. 7. The faith of the state being pledged for the payment of its public debt, in order to provide therefor, there shall be created a sinking fund, which shall be sufficient to pay the accruing interest on such debt, and, annually, to reduce the principal thereof, by a sum not less than one hundred thousand dollars, increased yearly, and each and every year, by compounding, at the rate of six per cent. per annum. The said sinking fund shall consist, of the net annual income of the public works and stocks owned by the state, of any other funds or resources that are, or may be, provided by law, and of such further sum, to be raised by taxation, as may be required for the purposes aforesaid. 1 Debates, 292, 467, 472-474, 476–492, 495-512, 514-524; 2 Debates, 295-299, 312-314, 427, 810, 837, 861, 870. Art. VIII. Sinking fund. SEC. 8. The auditor of state, secretary of state, and attorney gen- The commissioneral, are hereby created a board of commissioners, to be styled, "The ers of the sinking Commissioners of the Sinking Fund." 1 Debates, 292, 467, 524; 2 Debates, 313, 314, 427, 810, 837, 861, 870. fund. SEC. 9. The commissioners of the sinking fund shall, immediately Their biennial repreceding each regular session of the general assembly, make an esti- port. mate of the probable amount of the fund, provided for in the seventh section of this article, from all sources except from taxation, and report the same, together with all their proceedings relative to said fund and the public debt, to the governor, who shall transmit the same with his regular message, to the general assembly; and the general assembly shall make all necessary provision for raising and disbursing said sinking fund, in pursuance of the provisions of this article. 1 Debates, 292, 467, 524-537; 2 Debates, 299, 313, 314, 427, 810, 837, 861, 870. SEC. 10. It shall be the duty of the said commissioners faithfully to Application of apply said fund, together with all moneys that may be, by the general sinking fund. assembly, appropriated to that object, to the payment of the interest, as it becomes due, and the redemption of the principal of the public debt of the state, excepting only the school and trust funds held by the state. 1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 837, 861, 870. SEC. 11. The said commissioners shall, semi-annually, make a full Semi-annual reand detailed report of their proceedings to the governor, who shall, port. immediately, cause the same to be published, and shall also communicate the same to the general assembly, forthwith, if it be in session, and if not, then at its first session after such report shall be made. 1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 837, 838, 861, 870. SEC. 12. So long as this state shall have public works which require Board of public superintendence, there shall be a board of public works, to consist of works. three members, who shall be elected by the people, at the first general election after the adoption of this constitution, one for the term of one year, one for the term of two years, and one for the term of three years; Art. IX. MILITIA. Const. Their powers, du and one member of said board shall be elected annually thereafter, who shall hold his office for three years. 1 Debates, 292, 467, 537, 538; 2 Debates, 300, 362, 427, 810, 838, 861, 870. SEC. 13. The powers and duties of said board of public works, and ties, and compen- its several members, and their compensation, shall be such as now are, or may be, prescribed by law. sation. Who shall perform military duty. What officers to whom. No powers can be exercised by the board under laws existing when the Constitution took effect, unless such laws are consistent with the provisions of the Constitution. State v. Medberry, 7 O. S., 522. "The laws referred to are only such as are in harmony with the Constitution. Ib., 544-Swan, J.; and see Art. VIII, 3, Note. 1 Debates, 292, 467, 538; 2 Debates, 427, 810, 838, 861, 862, 870. ARTICLE IX. MILITIA. SECTION 1. All white (1) male citizens, residents of this state, being eighteen years of age, and under the age of forty-five years, shall be enrolled in the militia, and perform military duty, in such manner, not incompatible with the constitution and laws of the United States, as may be prescribed by law. (2) (1) See Art. V, § 1, Note 1. 1 Debates, 191, 449-458, 461-464; 2 Debates, 220, 346-352, 651, 687, 688, 695, 821, 843, 862, 870. SEC. 2. Majors general, brigadiers general, colonels, lieutenant colbe elected, and by onels, majors, captains, and subalterns, shall be elected by the persons subject to military duty, in their respective districts. (See Const. 1802, Art. V.) Same subject. Governor to commission officers, and have power to call forth the militia. Public arms. County and township officers. 1 Debates, 191, 464-466; 2 Debates, 220, 346, 350, 651, 688, 695, 821, 843, 862, 870. SEC. 3. The governor shall appoint the adjutant general, quartermaster general, and such other staff officers, as may be provided for by law. Majors general, brigadiers general, colonels, or commandants of regiments, battalions, or squadrons, shall, severally, appoint their staff, and captains shall appoint their non-commissioned officers and musicians. (See Const. 1802, Art. V.) 1 Debates, 191, 465, 466; 2 Debates, 220, 346, 348, 350, 651, 688, 695, 821, 843, 862, 870. SEC. 4. The governor shall commission all officers of the line and staff, ranking as such; and shall have power to call forth the militia, to execute the laws of the state, to suppress insurrection, and repel invasion. (See Const. 1802, Art. V.) power. "The faithful execution of the laws when enacted, expounded and applied by the courts to cases when necessary, is confided to the executive. The militia is an arm of the executive Not a word is found in the Constitution giving countenance to the opinion sometimes expressed, and more frequently felt, that the militia, or military force, instead of being a means to be employed by the executive department in executing the important duty of executing the laws, are a distinct department, equal to either of the others, and independent of their conState v. Coulter, Wright's Rep., 421-424, 425. trol." 2 Debates, 350, 651, 688, 695, 821, 843, 862, 870. SEC. 5. The general assembly shall provide, by law, for the protection and safe keeping of the public arms. 1 Debates, 191, 466; 2 Debates, 220, 346, 651, 688, 695, 821, 843, 862, 870. ARTICLE X. COUNTY AND TOWNSHIP ORGANIZATIONS. SECTION 1. The general assembly shall provide, by law, for the election of such county and township officers as may be necessary. Const. 1802, Art. VI, §§ 1, 3.) (See The Constitution did not create the municipalities of the state, nor does it attempt to enume-ate their powers. It recognizes them as things already in being, with powers that will continue to exist, so far as they are consistent with the organic law, until modified or repealed. Cass v. Art. XI. when elected. SEC. 2. County officers shall be elected on the second Tuesday of County officers, October, until otherwise directed by law, by the qualified electors of each county, in such manner, and for such term, not exceeding three years, as may be provided by law. (See Const. 1802, Art. VI, § I.) The power to fix the times of holding elections for county officers is vested by the Constitution in the legislature, and when a time has been so fixed by that body, any election for such officers held at a different time is unauthorized and void. State v. Dombaugh, 20 O. S., 167. 2 Debates, 565, 640-644, 654, 810, 838, 862, 870. SEC. 3. No person shall be eligible to the office of sheriff, or county Eligibility of shertreasurer, for more than four years, in any period of six years. (See iff and treasurer. Const. 1802, Art. VI, § 1.) 2 Debates, 565, 643, 644, 654, 810, 838, 862, 870. SEC. 4. Township officers shall be elected on the first Monday of Township officers, April, annually, by the qualified electors of their respective townships, when elected. and shall hold their offices for one year, from the Monday next succeed ing their election, and until their successors are qualified. 2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. SEC. 5. No money shall be drawn from any county or township County and towntreasury, except by authority of law. The board of county commissioners has no power, under the Constitution and laws of Ohio, to employ an attorney to prosecute criminal complaints before the examining magistrates of the county, except in cases in which the county, in its quasi corporate capacity, has a direct interest. Nor can the board of commissioners be compelled, by mandamus, to pay for such services out of the county treasury. State v. Com. of Franklin Co., 21 O. S., 648. 2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. ship treasuries. be removed. SEC 6. Justices of the peace, and county and township officers, may What officers may be removed, in such manner and for such cause, as shall be prescribed by law. 1 Debates, 298; 2 Debates, 151, 318, 566, 633, 664, 810, 838, 862, 870. SEC. 7. The commissioners of counties, the trustees of townships, Local taxation. and similar boards, shall have such power of local taxation, for police purposes, as may be prescribed by law. The construction of drains by townships, in cases where the public health, convenience, or welfare demands it, is within the meaning of "police purposes." Sessions v. Crunkilton, 20 0. 2 Debates, 565, 644, 747, 748, 775, 794, 805, 833, 838, 862, 870. S., 349. ARTICLE XI. APPORTIONMENT. Apportionment for members of The the general assembly. SECTION 1. The apportionment of this state for members of the general assembly shall be made every ten years, after the year one thousand eight hundred and fifty-one, in the following manner: whole population of the state, as ascertained by the federal census, or in such other mode as the general assembly may direct, shall be divided by the number "one hundred," and the quotient shall be the ratio of Ratio of reprerepresentation in the house of representatives, for ten years next suc- sentation in ceeding such apportionment. "The apportionment of the state must be regarded as made by the convention, and none the less so because the approval of the people was made necessary to its ultimate effect. They but ratified and approved an act already done by their representatives in convention, and were not, in any correct sense, the authors of the act itself." State v. Dudley, 1 O. S., 437-442-Ranney, J. "The Constitution apportions political power amongst the inhabitants of the state, as nearly equally as possible in proportion to numbers without any regard whatever to property, or, indeed, to any other circumstance. Inhabitants alone are represented; a given number in one place exercise the same political power, as a like number in any other locality. Some departure from the absolute equality of numbers is allowed in favor of the inhabitants of small counties, in the constitution of the house of representatives; but this in no wise changes the basis of representation from population to territory or property." Ib. 1 Debates, 460; 2 Debates, 5, 6, 708, 748, 767, 781, 811-813, 845, 846, 862, 870. house. |