Opinion
No. 28018
Decided February 28, 1940.
Constitutional law — Validity of refunding bonds of State Bridge Commission — Secretary of State may question constitutionality of statutes creating commission, when — Section 1084-1 et seq., General Code — Legislative powers not delegated to commission — Section 1, Article II, Constitution — State property not pledged and debt limitation inapplicable to revenue bonds.
IN MANDAMUS.
This is an action in mandamus, filed originally in this court. The relator is the State Bridge Commission of Ohio, a commission created by the provisions of Section 1084-3, General Code (116 Ohio Laws, 456, 457), and thereby empowered to "sue, and be sued; plead, and be impleaded"; the respondent is the duly elected, qualified and acting Secretary of State of the state of Ohio.
The relator alleges in its petition that it is empowered by Sections 1084-1 to 1084-17, as amended, to acquire, improve, operate and maintain toll bridges over rivers and navigable waters which are within the state, or which form a boundary of the state, and that in order to pay the cost of acquiring such bridges and making such improvements, it is empowered to issue bridge revenue bonds of the state, payable solely from the revenues of the bridges; that for the payment of these revenue bonds it may fix, charge and collect tolls for the use of the bridges sufficient to pay the principal and interest on the bonds, and the cost of maintaining, repairing and operating the bridges.
Relator then alleges that on or about March 13, 1936, the relator contracted to purchase, and did purchase on or about May 1, 1936, the toll bridge across Sandusky Bay from Erie county to Ottawa county, known as the Sandusky Bay Bridge, for a purchase price of $1,795,000; that the purchase price was paid by an issue of bonds in the aggregate principal amount of $1,925,000, designated as "State of Ohio Bridge Revenue 3 1/2 per cent Bonds, Sandusky Bay Bridge," dated April 1, 1936, bearing interest at the rate of 3 1/2 per cent per annum, payable semi-annually; that these bonds were sold for a total of $1,817,200, being 94.40 cents on the dollar and accrued interest; that of this issue, $607,000 of the bonds have been retired, and that there is outstanding bonds in the amount of $1,318,000.
Relator then alleges that it has determined to take advantage of the prevailing low interest rates for public securities, in order to free the bridge from toll charges at the earliest possible date, and has authorized the issuance of bridge revenue refunding bonds in the aggregate principal amount of $1,300,000, the bonds to be dated February 1, 1940, and to bear interest at the rate of two per centum per annum, payable semi-annually.
After setting forth the form of resolution passed, the bonds proposed to be issued, and the trust indenture, relator pleads that it intends to issue temporary bonds, pending the time when the definitive bonds may be issued; that the Governor of the state of Ohio and the chairman of the State Bridge Commission have already signed the bonds, under the Great Seal of the state of Ohio; that it has submitted these temporary bonds to the respondent, the Secretary of State, as required by this Section 1084-10, General Code, with a request that he attest them as required by this section; that the respondent has refused, and continues to refuse to attest these bonds on the ground that the act under which they are issued (Sections 1084-1 to 1084-17, inclusive, General Code) is unconstitutional.
Relator pleads that the attesting of these bonds is an act expressly enjoined by law upon the respondent, as Secretary of State of Ohio, and that it has no adequate remedy at law other than a writ of mandamus, for which it prays.
The respondent demurred generally to the petition, and the cause is submitted to this court finally upon the demurrer.
Mr. Thomas J. Herbert, attorney general, Mr. Isadore Topper, Mr. Hugh Huntington and Mr. Angus M. Holmes, for relator.
Mr. E.G. Schuessler and Mr. Perry L. Graham, for respondent.
The question in issue here concerns only the refunding bonds which the commission has authorized. There is express statutory authority found in the provisions of Section 1084-15 a, General Code, to permit the issuance of the bonds, if the statute is valid. It is not alleged that these proposed bonds The in any way defective in form or substance.
The first question concerns the right of the Secretary of State to raise the question of constitutionality of these statutes (Sections 1084-1 to 1084-17, General Code). Does he have such an interest in the execution of these bonds that he may contest their validity?
Section 1084-10, General Code, requires the bonds to be signed by the Governor and the chairman of the commission, under the Great Seal of the state of Ohio, and attested by the Secretary of State. The word "attested" means, in its general sense, "witnessed" or "certified." Used as it is in this section, it does not imply that his signature is in any way an act on behalf of the state, for which he may be liable. Rather, it is a certification of the signatures of the other two signers, and is clearly a ministerial action; and he clearly has no interest in this controversy. See 25 Ohio Jurisprudence, 986, Section 14. However, where a question of general public interest is raised, some courts have taken the view that an officer may make such a defense in a mandamus suit, even where there is some doubt that the respondent has any rights in the matter. See 30 A. L. R., 387; also 25 Ohio Jurisprudence, 986 and 987, Section 14. The Secretary of State was allowed to raise a similar question in State, ex rel. Public Institutional Building Authority, v. Griffith, 135 Ohio St. 604, 22 N.E.2d 200, and this court there passed on the constitutionality of the bonds.
The second question presented is whether these refunding bonds are valid. In other words, are Sections 1084-1 to 1084-17, General Code, invalid and unconstitutional?
It is the contention of the respondent that this act is unconstitutional in that it attemps to delegate legislative power, in violation of Section 1 of Article II of the Constitution. The respondent contends that the Legislature did not supply sufficient standards and effect sufficient limitations on the power of the commission, but rather left to them the determination of questions which require legislation on the part of the commission. The respondent points out that the bridges to be purchased are not designated by the Legislature, and that the price to be paid, the tolls to be charged, the amount and interest rate of the securities to be issued, and price at which they are to be sold, are left solely to the discretion of the commission, and therefore there is an unconstitutional delegation of legislative powers.
An examination of the statutes shows that the act is not one entirely without standards. Although the Legislature has conferred upon the State Bridge Commission discretion as to when it shall acquire bridges, it has carefully guarded the exercise of that power by describing generally the bridges that may be purchased (Sections 1084-1, 1084-15 b, General Code), by defining the term "cost of bridges," as used in the act, as including "the cost price, cost of improvements, financing charges, interest during any period of disuse before completion of improvements, cost of traffic estimates and of engineering and legal expenses, plans, specifications and surveys, estimates of cost and of revenues, other expenses necessary or incident to determining the feasibility or practicability of the enterprise, administrative expense and such other expenses as may be necessary or incident to the financing herein authorized and the acquisition of the bridge and the placing of the bridge in operation" (Section 1084-2, General Code), by providing in detail the procedure to be used in issuing bridge revenue bonds (Section 1084-10, General Code), providing the maximum interest to be paid, and the maximum term of the bonds (Section 1084-10, General Code), and by fixing a formula to determine the rate of tolls to be charged (Section 1084-13, General Code).
These statutes indicate a definite limitation established by the Legislature to control the powers of the commission. It is clear that every bridge is not of the same age, the same value or the same income possibilities, and any more stringent limitations would make the act unworkable; and since the state has the undoubted power to acquire bridges, it has also the power to delegate to a commission the administrative duty of determining their value and what would be a reasonable price to be paid for their purchase.
The respondent contends that these refunding bonds pledge state property, and create a debt of the state in excess of the constitutional limitations. Not much weight can be given to the argument that the bridge will belong to the state absolutely when the original bonds are paid by the refunding bonds, and the refunding bonds will have a pledge of state revenues for their payment. The state has no claim on the revenues of this bridge until the bridge revenue bonds have been paid (Section 1084-13, General Code), and Section 1084-15 a, General Code, again authorizes the revenues to be pledged for the payment of bridge revenue refunding bonds until they have been retired. In this case we do not have a combination of existing state buildings with improvements to be made thereon and the revenue from the joint property pledged to liquidate the cost of the improvement. There is no obligation whatever to pay these bonds except from bridge revenues. This case clearly falls within the rule laid down in the case of Kasch v. Miller, Supt., 104 Ohio St. 281, 135 N.E. 813, and our conclusion is sustained by the first paragraph of the syllabus of State, ex rel. Public Institutional Building Authority, v. Griffith, supra, and the enabling statutes are clearly constitutional.
Therefore, it is clear that no constitutional provisions are violated in the issuance of these refunding bonds, and the writ will be granted.
Demurrer to petition overruled and writ allowed.
DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS, and HART, JJ., concur.
WEYGANDT, C.J., dissents.