City of Rocky River v. State Employment Relations Board

Wright, J.,

dissenting. At the outset I must say that the majority opinion is a breathtaking and ofttimes scholarly exercise. However, in the effort to achieve a result that meets the particularized need of the appellees, the lead opinion has, in my view, created some most unfortunate jurisprudence.

Before dealing with the untimely demise of the right of local government to order its own affairs, a few kind words are in order with respect to other portions of Justice Douglas’ opinion. The majority’s articulate dissertation concerning the doctrine of stare decisis carefully distinguishes between cases involving constitutional concepts and such matters as statutory interpretation, procedural issues, and the common law. This effort is both timely and worthwhile. I am satisfied that if we follow the majority’s analysis as to this dichotomy in the future, the Bar and our citizenry will be well-served. Likewise, Justice Douglas’ discussion of the desirability of judicial deference to the will of the legislature is right on target. I readily accept the strong public policy considerations which mandate a strong presumption of constitutionality for all legislation. Likewise, I recognize there are valid public policy considerations undergirding the concept of mandatory arbitration for labor disputes between government and its safety forces. See Rocky River v. State Emp. Relations Bd. (1988), 39 Ohio St. 3d 196, 222-224, 530 N.E. 2d 1, 23-24 (Douglas, J., dissenting). For my part, it was a difficult call in rejecting the “police power” arguments that were made in this case. There is a strong case that can be made for the fact that a massive work stoppage in one of our major cities would be a matter of genuine statewide concern.17 But it must be remembered that such a happening with its attendant dangers to the public would presuppose a large number of our safety forces disregarding their responsibility to maintain law and order. Be that as it may, the majority has treated the constitutional doctrine of home rule as a failed concept and discarded local government as mere surplusage. Unfortunately, it has rejected without meaningful discussion the rationale rendered by this court six short months ago, and discarded without citation or comment almost a score of our previous cases.18

*23I

When we look at the bottom line, the majority has indicated without equivocation that Section 34, Article II of the Ohio Constitution, which authorizes the passage of laws dealing with wages and hours and (laws) “* * * providing for the comfort, health, safety and general welfare of all employes,” overrides all other provisions of the Ohio Constitution. As shall be demonstrated below, the majority has elevated the “general welfare” language contained in Section 34, Article II far beyond its original purpose. What is equally disquieting is that this is the first time a majority of this court ever “discovered” the awesome scope of this provision, save the one solitary pronouncement in State, ex rel. Bd. of Trustees of Pension Fund, v. Bd. of Trustees of Relief Fund (1967), 12 Ohio St. 2d 105, 41 O.O. 2d 410, 233 N.E. 2d 135.19

I simply cannot accept the notion that the delegates to the 1912 Constitutional Convention intended to, in effect, discard all other provisions of the Ohio Constitution, giving the General Assembly carte blanche to legislate changes in our Constitution without the bothersome process of submitting these matters to a vote of the people. I think it is worthwhile to take a look at just a few of the rights that most citizens take for granted but must now take a back seat to the “general welfare” clause noted above.

Consider, if you will, Section 1, Ar-*24tide I of the Ohio Constitution which declares the right to freedom and protection of property,20 or Section 2, Article I, which declares the right to alter, reform, or abolish government, and repeal special privileges.21 Review, if you will, Section 5, Article I, providing for trial by jury and reform in the civil jury system.22 Review Section 11, Article I, covering freedom of speech and of the press.23 See, also, Section 16, Article I, providing for redress in the courts.24 Finally consider Section 20, Article I, reserving power to the people.25

Some might suggest that the basic rights noted above are mere surplus-age as the protections guaranteed by the United States Constitution remain intact.26 But, imagine our citizenry’s surprise when it discovers that the legislative three-reading requirement27 and the rights of a public initiative and referendum28 are potentially in*25operative. Consider the Governor’s chagrin when he finds that his power of veto29 and the one-issue mandate for a special legislative session30 have been brought into question. Likewise, interested citizens may be dismayed to find that open sessions of the General Assembly as mandated by Section 13, Article II of the Ohio Constitution no longer apply when “employee welfare” legislation is under consideration. I simply cannot fathom a course of reasoning that would sanction, for example, the abolition of all local civil service systems and mandate that all public employees, state, local, and county, be placed under a vast statewide bureaucracy. Likewise, I cannot believe that we have authorized the General Assembly, using the aegis of the “general welfare” section, to mandate the closure of what are now *26public records pertaining to hiring criteria and the like of state or city employees.

In stark, plain terms the majority has reached the incredible result that any legislation passed for the stated purpose of promoting the “general welfare of all employes” may render any other specific provision of the Constitution mill and void.

A

The majority opinion concedes that the origins of Section 34, Article II of the Constitution lay in a proposal “ ‘[Relative to employment of women, children and persons engaged in hazardous employment.’ ” The majority then quotes snippets of testimony from a “waiter,” an eighty-year-old lawyer, and a “capitalist” in general support of its central premise. Any student of constitutional law must be aware of the raging controversy that surrounded the efforts to pass state and later federal legislation to regulate hours, wages, and the labor of women and children during the early years of this century. The leading case in this field was Lochner v. New York (1905), 198 U.S. 45, in which the Supreme Court struck down a New York law setting a sixty-hour-per-week maximum for work in bakeries on grounds that it violated the freedom of contract guaranteed by the Due Process Clause of the Fourteenth Amendment. Paragraphs one and four of the head-notes of that case illustrate the incredibly harsh result achieved in that decision and a series of cases that would follow.31 Legislation regulating the form and amount of wages was similarly invalidated, in both state and federal courts.32

While the majority offers up a cap*27sulized view of the constitutional debates to support its broad interpretation of Section 34, Article II, it also states in effect that any review of the debates is “unnecessary.” If the question were whether the provision authorizes the establishment of a minimum wage, I would agree that the language on that point is unambiguous, and resort to the debates thereon would shed no further light on the question. However, what the majority is attempting to accomplish here is the expansion of the term “general welfare” far beyond what was conceivably intended. The fact that this argument can even be made is proof, to me, that the provision has some ambiguity.

The majority loses sight of the fundamental principle that the polestar of constitutional construction is to ascertain and give effect to the real intentions of the language used and the people adopting it. Castleberry v. Evatt (1946), 147 Ohio St. 30, 33 O.O. 197, 67 N.E. 2d 861, paragraph one of the syllabus; Shryock v. Zanesville (1915), 92 Ohio St. 375, 110 N.E. 937. Moreover, it is axiomatic that in such construction “unreasonable or absurd consequences should, if possible, be avoided.” Castleberry, supra, at paragraph two of the syllabus. Because I feel the majority’s interpretation of Section 34, Article II is unreasonable, I am compelled to call attention to the statements made throughout the debate on this provision that clearly reveal the context in which the proposal was offered and that are patently ignored by the majority.33

A careful review of the 1912 constitutional debates reveals that the only purpose for the language that the majority now discovers is all powerful and completely subsumes the whole of the Constitution was to protect men, women and children from the powerful proscription against interference with one’s right to contract. This threat to wage and hour legislation disappeared with the line of cases which evolved in the late 1930s. See, e.g., West Coast Hotel v. Parrish (1937), 300 U.S. 379 (overruling Adkins v. Children’s Hosp. [1923], 261 U.S. 525, and upholding a Washington statute establishing a minimum wage law for women and minors); United States v. Darby (1941), 312 U.S. 100 (upholding federal statute fixing minimum wage and maximum hours of workers in interstate commerce).34

*28Turning to the proceedings and debates on Section 34, Article II,' appellant is correct in noting that virtually the entire debate on Proposal No. 122 {i.e., Section 34, Article II) focused on the minimum wage issue. However, it must be said that the majority correctly asserts that the proposal encompassed more than that single provision. The fact that an amendment was proposed to strike the words “minimum wage” is ample support itself for this statement.35 However, a review of the entire debate, including the minimum wage discussions, reveals the overall context in which the proposal was offered. That was a desire among the drafters to improve the working conditions of men, women, and children in terms of the number of hours of work each day, the minimum wage to be paid, and the environment in which work was being performed. It is abundantly clear that the proposal’s sole aim was to provide relief for those workers suffering in “sweatshop” industries and to override the constitutional proscription against interference with the right to contract.

The majority concludes that because a minimum wage was not the only issue included in Proposal No. 122 then any issue, even remotely connected with employee welfare, should be included. This unwarranted leap in reasoning ignores practically every recorded statement on the proposal, including those on which the majority relies. Delegate Dwyer (the majority’s octogenarian lawyer) did indeed state that the proposal “was about more than a minimum wage.” His statement, quoted by the majority, reveals what he thought was the proposal’s aim: “Therefore, give your employes fair living wages, good sanitary surroundings during hours of labor, protection as far as possible against danger, a fair working day. Make his life as pleasant for him as you can consistent with his employment.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1912) 1332-1333 (hereinafter “Proceedings and Debates”). I suggest that any fair-minded reader of the debates could only conclude that the section in question refers to wages, hours, and sanitary conditions in industry.

Moreover, the references to im*29proving specifically the wages, hours, and working conditions of employees in support of the proposal were numerous. For example, Mr. Farrell stated:

“* * •* [W]hen we see the attempts making to build up industries on a foundation of wages too low to admit of decent standards of family life, and hours of labor too long to admit of sufficient rest and relaxation for even moderate health, we are driven to the knowledge that it is time that a decent human effort should be made to remedy this un-American condition. * * *” 2 Proceedings and Debates, supra, at 1328.

Following a discussion of minimum wage regulation in Australia and England, Mr. Farrell addressed similar measures in Wisconsin, Minnesota, and Massachusetts. He quoted at length from the Massachusetts commission report favoring a proposal to fix wages of women and minors.36

Mr. Crites responded with arguments against a minimum wage. He stated: “If you will consider Proposal No. 122 very carefully, I am quite sure you will plainly see that no such wording should ever go into our organic law. First, you will note that this proposal is for the sole purpose of limiting the number of hours of labor; second, to establish a minimum wage for the wageworker. * * *” (Emphasis added.) Id. at 1331.37

Following Mr. Crites was Mr. Lampson, who expressed his frame of reference regarding the proposal: “* * * I think one of the greatest evils in the industrial situation in this country is what is known as sweatshop work. Women perforce of necessity and of their situation and environment are compelled to labor for wages far below what is necessary to give them a decent living * * *.” Id. at 1332.

Mr. Lampson was followed by the inimitable Mr. Dwyer, whose perspective is revealed in the statement quoted earlier. After a discussion of *30steps taken by the English government in this area, he continued: “I have been for many years an advocate of a minimum rate of wages. For that reason I want to cut out the sweatshops, and this minimum wage will cut them out. * * *” Id. at 1334.

An exhaustive review of the debates reveals beyond question that the drafters intended to empower the General Assembly to pass laws relating to minimum wages, maximum hours, and the health and safety of employees. Notably, the subject at issue here, compulsory arbitration, was discussed in three other proposals but never in connection with Proposal No. 122.38 With the specific subject areas of Section 34, Article II properly understood, the further provision, “and no other provision of the constitution shall impair or limit this power,” becomes equally clear. While no discussion of this language appears in the debate over Proposal No. 122,39 several statements made do reveal the *31context in which it was adopted. As more fully stated above, legislation on wages and hours was being struck down in both state and federal courts on freedom of contract and due process grounds. It is towards those issues that the proposal was addressed.

In his opening remarks, Mr. Farrell quoted at length from an article by Professor A. N. Holcombe concerning *32the constitutionality of minimum wage legislation. Even a cursory review of this passage reveals the fact that due process and freedom of contract were the obstacles sought to be overcome.40

Mr. Dwyer further addressed the contract issue:

“Perhaps some will say that the subject of employment is a matter of contract between employer and employe with which the government has nothing to do. This is not so. * * *
“On this question of private contract let me call attention to a step taken by the English government in reference to Irish landlords some twenty-five years ago. Up to that time the tenant class in Ireland were entirely at the mercy of the landlords. * * * The conditions became intolerable, but there it was a question of private contract. * * *” (Emphasis added.) 2 Proceedings and Debates, supra, at 1333.

Following the discussion of the proposal’s applicability to farm and domestic labor came this most revealing colloquy:

“Mr. HOSKINS: I wish to ask: Did your committee in its discussion find or conclude that there was anything in the constitution that would forbid the doing of everything provided for in this proposal?
“Mr. DWYER: We were of the opinion that possibly the power is now in the legislature to do that, but we wanted to have the power expressly conjf&F'T&cL * * *
“Mr. LAMPSON: Did you investigate the question as to whether that 'provision in the constitution relating to the passage of laws violating the obligation of contract has any bearing on this proposal?
“Mr. DWYER: The courts have been deciding cases. Take that bakeshop case [Lochner, supra] in New York. The supreme court there decided it was a question of private contract about the hours of labor. Our courts are becoming more progressive. They are catching the spirit of the time and they are changing very much to be in accord with public sentiment, and we should enable them to do that and we should put a clause in the constitution that will give the courts an opportunity to more liberally construe these matters than they have done in the past. * * *” (Emphasis added.) Id. at 1335.

Mr. Dwyer’s reference to Lochner v. New York, is most significant, for it reveals the overall controversy giving rise to Proposal No. 122 — wage and hour legislation versus freedom of contract.41 The fundamental error em*33braced in today’s majority opinion lies in its failure to place the language of Section 34, Article II within its historical context.

B

A review of the cases construing Section 34, Article II provides further proof that the provision is limited in *34scope. One example directly on point is Craig v. Youngstown (1954), 162 Ohio St. 215, 55 O.O. 110, 123 N.E. 2d 19. The city of Youngstown, a charter city, authorized its council to fix the salary of all officers and employees of the city. The council adopted civil service regulations, and plaintiff, a classified civil service employee of the city, was paid pursuant to those regulations. Plaintiff brought an action against the city for underpayment, alleging that because he was working on the construction of public improvements his compensation should have been equal to the prevailing wage for the type of work he performed. Thus, the question specifically presented was whether a charter city is amenable to the Prevailing Wage Law (then G.C. 17-3 et seq.) with respect to compensation of its civil service employees. In finding for the city, this court unanimously rejected the plaintiffs attempt to rely on Section 34, Article II:

“The appellant urges that the Prevailing Wage Law was enacted by the General Assembly pursuant to Section 34, Article II of the Ohio Constitution, which provides:
“ ‘Laws may be passed * * *’
“It is argued that application of the Prevailing Wage Law as to employees of municipalities can not be prevented through reliance upon the home-rule powers of a charter city, which powers are granted in Article XVIII of the Ohio Constitution. It is the view of this court that the Prevailing Wage Law does not establish ‘a minimum wage’ in the sense that those words are used in Section 34, Article II of the Constitution. In that connection it is to be noted that the General Assembly has enacted other statutes comprised in Sections 154-45d to 154-45t, General Code, which sections appear under the heading, ‘Minimum Fair Wage Standards,’ and which are commonly known as the Minimum Wage Act. The corresponding sections in the Revised Code are 4111.01 et seq. There is no issue in the instant case with respect to the Minimum Wage Act and no construction of it is required or undertaken herein. It is only pertinent to observe that the subject of minimum wage was covered by the General Assembly by the enactment of statutes entirely separate from those comprising the Prevailing Wage Law.” (Emphasis sic.) Id. at 220-221, 55 O.O. at 112-113, 123 N.E. 2d at 22.

The applicability of the Prevailing Wage Law to municipalities was, of course, again brought before this court in State, ex rel. Evans, v. Moore (1982), 69 Ohio St. 2d 88, 23 O.O. 3d 145, 431 N.E. 2d 311. A majority of the court there held that the Prevailing Wage Law was a law of genuine statewide concern and preempted any conflicting local ordinance. However, neither the syllabus law, in which four justices concurred, nor the lead opinion, in which three justices concurred, relied on or even mentioned Section 34, Article II. Only Justice William B. Brown, in his *35brief concurring opinion, expressed the view that the authority to promulgate the prevailing wage statutes could derive from Section 34, Article II.

Only in the following contexts has Section 34, Article II been relied upon to any extent by this court: (1) laws establishing the authority of the Public Utilities Commission to enforce orders for the protection, welfare and safety of employees, Akron & Barberton Belt Rd. Co. v. Pub. Util. Comm. (1947), 148 Ohio St. 282, 35 O.O. 288, 74 N.E. 2d 25642; (2) workers’ compensation laws and employer responsibilities thereunder, Indus. Comm. v. Warnke (1936), 131 Ohio St. 140, 5 O.O. 505, 2 N.E. 2d 248; Ohio Automatic Sprinkler Co. v. Fender (1923), 108 Ohio St. 149, 141 N.E. 26943; (3) minimum wage laws, Strain v. Southerton (1947), 148 Ohio St. 153, 35 O.O. 167, 74 N.E. 2d 69; (4) Sunday closing laws, State v. Kidd (1958), 167 Ohio St. 521, 5 O.O. 2d 202, 150 N.E. 2d 41344; (5) laws regulating the hours of city fire department employees, State, ex rel. Strain, v. Houston (1941), 138 Ohio St. 203, 20 O.O. 265, 34 N.E. 2d 219; (6) “frequenter” laws, requiring employers to furnish a place of employment safe for employees and frequenters, Comerford v. Jones & Laughlin Steel Corp. (1959), 170 Ohio St. 117, 10 O.O. 2d 11, 162 N.E. 2d 861. Notably, every one of these cases deals with either the minimum wage, hours of labor, or safety conditions.45

*36The sole exception is found in Pension Fund, supra, which discussed Section 34, Article II as authority for the state’s power to establish a statewide pension system. Pension Fund, while standing alone in a myriad of cases to the contrary, does lend support to the majority’s position. The discussion of Pension Fund involves a truly remarkable form of hermeneutical reasoning. This form of opinion writing generally requires a text to be interpreted, explained or expounded on. Pension Fund contains no constitutional history, ignores the ramifications of its language, and like the majority reaches its conclusion absent rules, facts or rationale. This court, as I have, has erred on occasion. That was the case in Pension Fund.

As to more recent jurisprudence, any attempt by the majority to rely on State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, 22 OBR 1, 488 N.E. 2d 181, and Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St. 3d 50, 26 OBR 42, 496 N.E. 2d 983, in this context is without merit. It is simply not true that “[t]hese cases long ago settled the home-rule amendment argument pitting Sections 3 and 7, Article XVIII versus Section 34, Article II of the Ohio Constitution.” In fact, Section 34 is not even mentioned in the majority opinion in either of these cases. The majority herein implicitly recognizes this fact by citing neither Dayton F.O.P. nor Kettering in Section IV C of its opinion. However, I am compelled to point out what I believe is a misstatement of these cases in Section II A.

The holding in Dayton F.O.P. is at war with today’s holding, and I submit that the majority’s analysis herein has overruled paragraph one and half of paragraph two of the syllabus of Dayton F.O.P. In paragraph one we held that the second sentence of R.C. 4117.01(F)(2), the so-called Dayton Amendment, violated Section 26, Article II because it did not have a uniform operation throughout the state. In paragraph two we held that this sentence also violated state and federal equal protection guarantees.

The majority today holds that the Ohio Public Employees’ Collective Bargaining Act was enacted pursuant to Section 34, Article II, and that therefore every section of the Act necessarily prevails over all provisions of the Ohio Constitution. Under this analysis we could not possibly hold that anything in the Act is void on state constitutional grounds. However, that is precisely what this court did in the syllabus of Dayton F.O.P.46 If R.C. 4117.14(1) is beyond the reach of this *37court, so too must be the second sentence of R.C. 4117.01(F)(2).47

In this same vein, there is no way to square paragraph two of today’s syllabus with paragraph one. Paragraph two, when considered in conjunction with the discussion pertaining thereto, holds that R.C. Chapter 4117, having been enacted pursuant to Section 34, Article II, prevails over every other provision of the Ohio Constitution. Why, pray tell, does the majority hold in paragraph one of the syllabus that R.C. 4117.14(1) in particular is not an unlawful delegation of legislative authority? Is not the proscription against such delegation also found in the Ohio Constitution, in those provisions creating our state government’s heretofore balanced separation of powers? There is no need for today’s analysis of this issue, as legislation enacted for the “general welfare” of employees may now delegate any amount of legislative authority, as well as executive and judicial authority, with complete impunity. Thus I submit that paragraph one of the syllabus is obiter dictum at best, and at worst undermines the majority’s view of Section 34, Article II, for it implicitly recognizes that exceptions thereto may be entertained.48

This same inconsistency is evident in this court’s very recent decision in Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208, supra. In paragraph one of the syllabus of that case this court held, “R.C. 4117.16(A) does not violate *38the doctrine of separation of powers.” If R.C. Chapter 4117 was enacted under an all-powerful Section 34, Article II, as three members of the court therein held, why need we ask if anything in the Act violates the separation of powers doctrine? The question has already been answered — nothing within the Act ever could. Thus, in paragraph one of the syllabus of Central Ohio Transit Auth., as in paragraph one of today’s syllabus, I find obiter dictum which in my view contradicts the majority’s analysis of Section 34, Article II.

II

In Part IV B the majority holds that because R.C. Chapter 4117 is a “general law,” it takes precedence over any conflicting local interests. This court did hold in Dayton F.O.P., supra, at paragraph one of the syllabus, that, “[t]he collective bargaining law of the state of Ohio is a law of a general nature. * * *” However, in concluding, then, that the collective bargaining law necessarily prevails over all powers of local self-government, the majority misconstrues Sections 3 and 7, Article XVIII, and completely disregards a number of decisions of this court contrary to that conclusion.

In State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 5 O.O. 2d 481, 151 N.E. 2d 722, paragraph four of the syllabus, this court held:

“The words, ‘as are not in conflict with general laws’ found in Section 3 of Article XVIII of the Constitution, modify the words ‘local police, sanitary and other similar regulations’ but do not modify the words ‘powers of local self-government.’ ”

This holding has been reaffirmed by this court in numerous cases since 1958. See State, ex rel. Petit, v. Wagner (1960), 170 Ohio St. 297, 301, 10 O.O. 2d 344, 346, 164 N.E. 2d 574, 576-577; Beacon Journal Publishing Co. v. Akron (1965), 3 Ohio St. 2d 191, 195, 32 O.O. 2d 183, 185, 209 N.E. 2d 399, 402.49 Moreover, paragraph four of the Canada syllabus is consistent with many cases that preceded it. See, e.g., Benjamin v. Columbus (1957), 167 Ohio St. 103, 108, 4 O.O. 2d 113, 116, 146 N.E. 2d 854, 859; State, ex rel. Bindas, v. Andrish (1956), 165 Ohio St. 441, 60 O.O. 92, 136 N.E. 2d 43, paragraph one of the syllabus.50

I object to both form and substance of the majority’s covert rejection of this well-settled principle. As to the form, it seems to me that a brief footnote containing one general quote from a constitutional delegate is a woefully inadequate basis for disposing of over seventy years of established precedent. As to the substance, in re*39jecting paragraph four of the Canada syllabus, the majority implies that this court has never before considered the constitutional debates on this issue. This is not an accurate assumption.

In State, ex rel. Petit, v. Wagner, supra, this court did review in some depth the constitutional proceedings regarding the home-rule amendment on precisely this question:

“Ohio municipalities which have adopted charters have done so under Section 7, Article XVIII of the Constitution, which reads as follows:
“ ‘Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this Article, exercise thereunder all powers of local self-government. ’

“It will be quickly noted that such section does not contain the limiting last phrase of the home-rule amendment (Section 3, Article XVIII), ‘as are not in conflict with general laws.’ This omission has occasioned much judicial discussion, and, as has been recognized in such recent cases as State, ex rel. Lynch, v. City of Cleveland, 164 Ohio St., 437, 132 N.E. (2d), 118, and State, ex rel. Canada, v. Phillips, Dir., 168 Ohio St., 191, 151 N.E. (2d), 722, some lack of consistency has existed. As Weygandt, C.J., pointed out in the Lynch case, Sections 3 and 7 of Article XVIII ‘have been highly and often bitterly controversial even from the time they were first proposed.’ The controversy concerns whether the last phrase just quoted (‘as are not in conflict with general laws’) modifies all that has gone before it in Section 3, or only the portion dealing with the adoption of and enforcement within the municipality’s limits of ‘local police, sanitary and other similar regulations.’ It is argued that the modifying phrase applies not to this portion alone but to the opening phrase (dealing with ‘all powers of local self-government’) as well because the framers of the Constitution knowingly refused to separate the phrases designating the two classifications of functions by a comma (2 Ohio Constitutional Convention, Proceedings and Debates [1912], 1860 to 1861). While the insertion of the comma would have been proof positive of an intent to have the modifier apply to the second phrase only, the converse does not necessarily follow, and this court has chosen to read the section as it would have had a comma been inserted after the word, ‘self-government.’ This is the clear effect of the Lynch and Canada cases, supra.

“Indeed, any other interpretation of Section 3 would render the adoption of Section 7 senseless, because its grant of authority for municipal charter operation is specifically ‘subject to the provisions of Section 3.’ If full home-rule authority were intended to have been created by Section 3, the adoption of Section 7 could only be considered as a vain and superfluous act. Such a conclusion would be completely lacking in justification, and was expressly denied in the Canada case, supra, paragraph four of the syllabus * * *.” Id. at 300-301, 10 O.O. 2d at 346, 164 N.E. 2d at 576-577.

It is thus clear that the court in State, ex rel. Petit, v. Wagner, supra, did find that paragraph four of the syllabus in Canada was wholly consistent with the recorded debates on the home-rule amendment. Having fully reviewed these debates I am compelled to agree.51

*40Again, I must point out the majority’s misuse of earlier cases of this court. While the fact that “the collective bargaining law of the state of Ohio is a law of a general nature” may have been settled in Dayton F.O.P., neither that ease nor Kettering held that all “general laws” necessarily prevail over “laws of a municipality adopted in the exercise of its powers of local self-*41government.” As discussed above, such a holding would require the overruling of paragraph four of the Canada syllabus and the numerous cases in agreement therewith. Neither Dayton F.O.P. nor Kettering held to that effect.

Dayton F.O.P., of course, did not concern home rule. While Kettering did specifically hold that R.C. 4117.01 *42(F)(2) does not violate a municipality’s power of local self-government, it did so on the basis of the belief that public employee collective bargaining is a matter of statewide concern. Id. at 55, 26 OBR at 46-47, 496 N.E. 2d at 987-988. Because in my view a city’s power to control its own police command officers must prevail over the “statewide concerns” embodied in the Act, I dissented from the result in Kettering. Similarly, no matter is more fundamental to the power of local self-government than the power to determine the compensation of municipal employees, including safety forces. Moreover, I seriously doubt that forcing the city of Rocky River into mandatory arbitration with its safety forces affects the general public of the state as a whole more than it does the inhabitants of that city. Thus, even under the “statewide concern doctrine” I believe that R.C. 4117.14(1) unconstitutionally infringes upon local powers of self-government.

Be that as it may, the majority has in effect eliminated the statewide concern doctrine from our home-rule jurisprudence by completely obviating the need for such analysis. For by holding that all powers of local self-government are limited by “general laws” enacted by the General Assembly, the majority has effectively read the home-rule provisions right out of the Ohio Constitution. What Justice Wilkin recognized in 1913 has now become the law of Ohio in 1989:

“If all powers of municipal self-government must be subject to general laws, then clearly cities do not have home rule; they have only such powers of local self-government as the legislature of the state allows to them, and cities of Ohio will still remain under the domination of the state legislature. * * *” Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 380, 103 N.E. 512, 523 (Wilkin, J., concurring).

Ill

I would readily agree that there *43are lessons to be learned from Justice Douglas’ lengthy and scholarly history of the doctrine of stare decisis. Who can doubt the principle that common-law precedents “provide the benchmark by which other case law is measured”? Moreover, I dare say it is axiomatic that “[w]hen a precedent involves statutory interpretation, such precedent is viewed as more sacrosanct than the common-law precedents.” However, I am as yet unable to assess how the majority now views the rule of stare decisis in the constitutional context.

I certainly accept the basic premise that stare decisis should play a lesser role in constitutional jurisprudence. Indeed, our power (or in the majority’s term “right”) to reexamine constitutional precedent is necessary due to the fact that “we live in an ever-evolving society that requires innovative thinking and even change to cope with problems of the present and future * * *.” However, I believe this principle is plainly misused in the instant case, as the majority’s discussion of stare decisis presses towards a single objective — justifying the overruling of Rocky River, supra.

Moreover, while the majority on one hand justifies for itself the decision to completely ignore our six-month-old ruling in Rocky River, supra, it then relies without reservation on Pension Fund, supra, as if that case completely controls the analysis herein. In light of the non-analysis contained in that case, I submit that the majority has effectively eliminated the doctrine of stare decisis, limited though it may be, from constitutional jurisprudence in Ohio.

IV

Returning to the majority’s holding on Section 34, Article II, I must state that I would predict there will come a day when the very folks who may applaud today’s result will rue this decision. Consider, for example, cases involving anti-union legislation, such as limiting dollar amounts on union dues or a ban on part-time employment for safety forces, passed, of course, as “employee welfare legislation.” Faced with this situation, I suggest that we would observe a charismatic uproar that would make the feast of Pentecost appear as quiet time at a day nursery. While I regret the plain fact that the majority has stripped this state’s charter cities of their constitutional power of home rule, I deplore even more the way in which the deed was accomplished.

V

In conclusion, some might suggest that I should merely repeat my support for the views expressed in the Chief Justice’s opinion contained in Rocky River, supra. But to do so would avoid my obligation as a judge as outlined in a most eloquent manner in the majority opinion. When this court errs, not knowing or avoiding the law, one must speak out. Our Constitution is our greatest lay commandment. To ignore it, for whatever purpose, is bad business indeed.

Perhaps the result achieved by the majority will be salutary. The concept of mandatory arbitration does have the stamp of approval of the General Assembly. However, the notion that a worthy result will justify any means is entirely foreign to Anglo-American jurisprudence. The majority’s facile approach to this matter is beguiling, but that reasoning should not be allowed to mask the mischief accomplished by its methodology.

As stated, the majority would have us believe that any legislation reasonably connected to the “general welfare of all employes” may not be *44impaired or limited by any other portion of the Constitution. Such legislation would clearly have the effect of an amendment thereto. The more my brethren try to explain this concept the less one can understand it. In a word, what we have here is not an exercise in constitutional jurisprudence, and I will have no part of it.

I respectfully dissent.

For an excellent analysis of these considerations, see Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St. 3d 50, 26 OBR 42, 496 N.E. 2d 983.

Notwithstanding the majority’s unsupported statement that “the home-rule sections do not apply,” clearly at issue here is the freedom to exercise all powers of local *23self-government guaranteed to our municipalities in Sections 3 and 7, Article XVIII of our Constitution. It is beyond question that these powers of local self-government include, if nothing else, the power to make decisions regarding financial affairs affecting only local self-government. By holding that such matters can be taken out of the hands of elected municipal officials, the majority ignores established and heretofore well-accepted precedent to the contrary. As stated in Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, 383, 15 O.O. 3d 450, 455, 402 N.E. 2d 519, 525, “[i]t has been firmly established that the ability to determine the salaries paid to city employees is a fundamental power of local self-government.” See State, ex rel. Mullin, v. Mansfield (1971), 26 Ohio St. 2d 129, 132, 55 O.O. 2d 239, 241, 269 N.E. 2d 602, 604, certiorari denied (1981), 404 U.S. 985 (recognizing the power of a noncharter city to establish by ordinance the pay scales of its civil service classifications).

The holdings in Benevolent Assn. v. Parma and State, ex rel. Mullin, v. Mansfield are consistent with the countless cases in which the power of home rule has been held to include the power to make local governance and financial decisions. See, e.g., Teamsters Local Union No. 377 v. Youngstown (1980), 64 Ohio St. 2d 158, 18 O.O. 3d 379, 413 N.E. 2d 837 (power to determine compensation of employees); State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 5 O.O. 2d 481, 151 N.E. 2d 722 (power to appoint city police officers); Craig v. Youngstown (1954), 162 Ohio St. 215, 55 O.O. 110, 123 N.E. 2d 19 (power to establish municipal employee pay scales); State, ex rel. Bailey, v. George (1915), 92 Ohio St. 344, 110 N.E. 951 (power to select own officers); Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 103 N.E. 512 (power to set the procedure for nomination of officers). See, also, State Personnel Bd. of Review v. Bay Village Civil Service Comm. (1986), 28 Ohio St. 3d 214, 28 OBR 298, 503 N.E. 2d 518; State, ex rel. Vukovich, v. Youngstown Civil Service Comm. (1982), 69 Ohio St. 2d 16, 23 O.O. 3d 42, 430 N.E. 2d 452; Hile v. Cleveland (1928), 118 Ohio St. 99, 160 N.E. 621; State, ex rel. Vogt, v. Donahey (1923), 108 Ohio St. 440, 140 N.E. 609; State, ex rel. Lentz, v. Edwards (1914), 90 Ohio St. 305, 107 N.E. 768.

Cf. the lead opinion in Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208 (1988), 37 Ohio St. 3d 56, 524 N.E. 2d 151, in which three justices concurred.

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”

“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, and shall have justice administered without denial or delay. * * *”

“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”

However, in Scott v. News-Herald (1986), 25 Ohio St. 3d 243, 25 OBR 302, 496 N.E. 2d 699, this court overruled Milkovich v. News-Herald (1984), 15 Ohio St. 3d 292, 15 OBR 424, 473 N.E. 2d 1191, and relied on state as well as federal constitutional guarantees to uphold the dismissal of the plaintiffs libel action: “We find the article [which was the subject of the action] to be an opinion, protected by Section 11, Article I of the Ohio Constitution as a proper exercise of freedom of the press.” Scott, supra, at 244, 25 OBR at 303, 496 N.E. 2d at 701.

This requirement is found in Section 15(C), Article II of the Ohio Constitution:

“Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house. * * *”

Section la, Article II:

“The first aforestated power reserved by the people is designated the initiative, and the signatures of ten per centum of the electors shall be required upon a petition to propose an amendment to the constitution. When a petition signed by the aforesaid required number of electors, shall have been filed with the secretary of state, and verified as herein provided, proposing an amendment to the constitution, the full text *25of 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 hereinafter provided, at the next succeeding regular or general election in any year occurring subsequent to ninety days after the filing of such petition. * * *”

Section lc, Article II:

“The second aforestated power reserved by the people is designated the referendum, and the signatures of six per centum of the electors shall be required upon a petition to order the submission to the electors of the state for their approval or rejection, of any law, section of any law or any item in any law appropriating money passed by the general assembly. No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided. When a petition, signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to sixty days after the filing of such petition, and no such law, section or item shall go into effect until and unless approved by a majority of those voting upon the same. If, however, a referendum petition is filed against any such section or item, the remainder of the law shall not thereby be prevented or delayed from going into effect.”

This power is granted by Section 16, Article II:

“If the governor approves an act, he shall sign it, it becomes law and he shall file it with the secretary of state.
“If he does not approve it, he shall return it with his objections in writing, to the house in which it originated, which shall enter the objections at large upon its journal, and may then reconsider the vote on its passage. * * *
U* * *
“The governor may disapprove any item or items in any bill making an appropriation of money and the item or items, so disapproved, shall be void, unless re-passed in the manner prescribed by this section for the repassage of a bill.”

Such sessions are provided for in Section 8, Article III:

“The governor on extraordinary occasions may convene the general assembly by proclamation and shall state in the proclamation the purpose for which such special session is called, and no other business shall be transacted at such special session except that named in the proclamation, or in a subsequent public proclamation or message to the general assembly issued by the governor during said special session, but the general assembly may provide for the expenses of the session and other matters incidental thereto.”

“The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

<<* * *
“Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract, in relation to labor, and as such it is in conflict with, and void under, the Federal Constitution.”

This analysis also prevailed in the state courts. The freedom to contract was seen as fundamental to state property and due process guarantees. See, e.g., Ritchie v. People (1895), 155 Ill. 98, 40 N.E. 454; Palmer & Crawford v. Tingle (1896), 55 Ohio St. 423, 45 N.E. 313, paragraph one of the syllabus. Nevertheless, laws regulating the hours of labor in dangerous occupations were generally upheld by the state courts despite their interference with contractual liberty. See, e.g., State v. Cantwell (1904), 179 Mo. 245, 78 S.W. 569; State v. Thompson (1906), 15 Wyo. 136, 87 P. 433; contra In re Morgan (1899), 26 Colo. 415, 58 P. 1071. However, in nonhazardous industries such laws were frequently invalidated on freedom of contract grounds. See, e.g., Low v. Rees Printing Co. (1894), 41 Neb. 127, 59 N.W. 362.

Regulation of the hours of labor for women generally fared better against the freedom of contract argument. In Muller v. Oregon (1908), 208 U.S. 412, the court upheld an Oregon law which forbade females employed in any mechanical establishment, factory, or laundry from working more than ten hours a day. See, also, Bosley v. McLaughlin (1915), 236 U.S. 385. However, even laws of this nature were in some states struck down as violating the freedom of contract guaranteed by state constitutional due process and property clauses. See, e.g., Ritchie v. People (1895), 155 Ill. 98, 40 N.E. 454; People v. Williams (1907), 189 N.Y. 131, 81 N.E. 778.

In many cases laws requiring the *27payment of wages at regular intervals and in official United States currency were held invalid. See, e.g., Godcharles v. Wigeman (1886), 113 Pa. St. 431, 6 A. 354; State v. Goodwill (1889), 33 W. Va. 179, 10 S.E. 285.

Even minimum wage legislation for women and children was invalidated on freedom of contract grounds. See, e.g., Adkins v. Children’s Hosp. (1923), 261 U.S. 525; Topeka Laundry Co. v. Court of Indus. Relations (1925), 119 Kan. 12, 237 P. 1041; People, ex rel. Tipaldo, v. Morehead (1936), 270 N.Y. 233, 200 N.E. 799.

As was aptly stated by this court in Cleveland v. Bd. of Tax Appeals (1950), 153 Ohio St. 97, 103, 41 O.O. 176, 179, 91 N.E. 2d 480, 484:

“The purpose of the amendment, and the reasons for, and the history of its adoption, are pertinent in determining the meaning of the language used, for when the language is obscure or of doubtful meaning the court may, with propriety, recur to the history of the time when it was passed, to the attending circumstances at the time of adoption, to the cause, occasion or necessity therefor, to the imperfections to be removed or the mischief sought to be avoided and the remedy intended to be afforded.” See, also, State, ex rel. Swetland, v. Kinney (1982), 69 Ohio St. 2d 567, 23 O.O. 3d 479, 433 N.E. 2d 217; State, ex rel. Horner, v. Anderson (1975), 41 Ohio St. 2d 166, 70 O.O. 2d 311, 324 N.E. 2d 572.

West Coast Hotel and Darby followed *28the earlier ruling in Nebbia v. New York (1934), 291 U.S. 502, which had upheld the power of the state of New York to regulate prices in the dairy industry.

The evolution in the United States Supreme Court on these questions was mirrored at the state level. By the late 1930s, state court decisions consistent with the Lochner analysis had been discarded and replaced with a more progressive view of the state’s police power. The freedom of contract doctrine receded from view in this context. See, e.g., Mary Lincoln Candies, Inc. v. Dept. of Labor (1942), 289 N.Y. 262, 45 N.E. 2d 434 (upholding state minimum wage law for women and children); Strain v. Southerton (1945), 75 Ohio App. 435, 31 O.O. 250, 62 N.E. 2d 633, affirmed (1947), 148 Ohio St. 153, 35 O.O. 166, 74 N.E. 2d 67 (same).

The majority is correct in rioting that if Section 34, Article II applied only to minimum wage legislation the balance of the provision would be “mere surplusage.” However, query whether the majority’s extremely broad interpretation of “general welfare” does not have a similar effect. Would not maximum hour and minimum wage legislation qualify as being within the general welfare of employees, such that their mention in the provision is also “mere surplusage”? Moreover, do we not also find “mere surplusage” in Section 35, Article II, as the workers’ compensation' system certainly promotes the general welfare of employees? Consider also the surplusage contained in Sections 33 and 37, Article II. Reading the “general welfare" language of Section 34, Article II as broadly as the majority does renders these other provisions completely unnecessary.

“[‘]1. It would promote the general welfare of the state, because it would tend to protect the women workers, and particularly the younger women workers from the economic distress that leads to impaired health and inefficiency.

ííj'íj * * *

“[‘]3. It would furnish to the women employes a means of obtaining the best minimum wages that are consistent with the ongoing of the industry without recourse to strikes or industrial disturbances. It would be the best means of insuring industrial peace so far as this class of employes is concerned.

“[‘]4. It would tend to prevent exploitation of helpless women, and, so far as they are concerned, to do away with ‘sweating’ in our industries.

“[‘]5. It would diminish the parasite character of some industries and lessen the burden now resting on other employments. * * *[’]” Id. at 1330.

In his earlier writing in this case the author of today’s majority opinion completely discounted Mr. Crites’ statements: “Crites was an outspoken critic and vigorous opponent of the amendment, and his characterization of the amendment can hardly be cited as authority for its meaning.” Rocky River, supra, at 216, 530 N.E. 2d at 18-19 (Douglas, J., dissenting). I, on the other hand, fail, to see how the arguments Crites made against the proposal are authority for the suggestion that he did not understand the proposal. Significantly, there was not one comment in Crites’ remarks or in any of the discussion suggesting that Crites misunderstood the scope of the proposal. Logically there would be none, as his statement was consistent with every other recorded statement on the proposal’s objective.

Incidentally, it should be noted for the record that Mr. Crites voted for the passage of Proposal No. 122. 2 Proceedings and Debates, supra, at 1955.

From a review of the index to the constitutional debates it appears that compulsory arbitration in the labor context was considered in three separate proposals, none of which was contained in Proposal No. 122. First was Proposal No. 71, entitled “Relative to labor,” introduced by the majority’s Mr. Dwyer and read for the first time on January 22, 1912. 1 Proceedings and Debates, supra, at 96. It was referred to the Committee on Labor the next day, id. at 102, but was never reported on.

Proposal No. 131, entitled “Relative to strikes, riots, and great -industrial disturbances,” suffered a similar demise. It was introduced by Mr. Miller, of Fairfield, and read for the first time on January 24,1912, id. at 106; was referred to the Committee on Labor the next day, id. at 118; was called from the committee April 25, and then immediately recommitted to the committee, 2 Proceedings and Debates, supra, at 1428, never to be heard of again.

Finally there was Proposal No. 289, entitled “Relative to establishing courts of arbitration.” This proposal was introduced by Mr. Fluke and read for the first time on March 4, 1912, 1 Proceedings and Debates, supra, at 564; was referred to the Committee on Labor three days later, id. at 639; then was immediately called back and referred to the Committee on Judiciary and Bill of Rights, id. at 640. On April 24,1912, the proposal was reported back with the recommendation that it be indefinitely postponed, which report was agreed to. 2 Proceedings and Debates, supra, at 1404.

While the texts of these proposals are not recorded in the debates, and the only reference to their subject matter appears in the index to the proceedings, it must be noted that what is recorded on these three proposals makes no reference to Proposal No. 122. More significant is the fact that in the lengthy discussion and debate over Proposal No. 122 there was not one reference to any of these three proposals or the notion that the subject of compulsory arbitration is intended to be included within the powers granted to the legislature in Proposal No. 122. This, I submit, further supports the view that Section 34, Article II is not all-encompassing and must be construed within its historical context.

This language was considered in the discussion of Proposal No. 209, now embodied in Section 37, Article II. This provision sets a maximum number of hours, per day and week, for labor on public works. The opening remarks at the proposal’s second reading further reveal the historical context in which this proposal and Proposal No. 122 were offered:

“Mr. TETLOW: * * *
“This proposal provides for an eight-hour day on public works, and not to exceed forty-eight hours a week on the maintenance and operation of public works, applying to laborers, mechanics, etc. It is quite evident that we desire this proposition to become a constitutional provision to safeguard this right, and to circumvent the decisions rendered by courts of this state. Many of you will remember that in 1900 a state law was passed in this state providing for an eight-hour day on public works, and also an eight-hour day on all contracts and *31subcontracts for and in behalf of the state and its political subdivisions. That law was declared unconstitutional by the supreme court of this state in a case arising in Cleveland, The Clements Construction Company v. The City of Cleveland. In that case the supreme court of Ohio decided as follows:
“[‘]The act of April 16, 1900 (94 Ohio Laws, 357), entitled: “An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public work, ** * *[”] is in conflict with sections 1 and 19 of article I of the constitution of Ohio; because it violates and abridges the right of parties to contract * * * |">j
“The action of our supreme court in declaring this law null and void is not in conformity with the decisions rendered on the same subject in other states and by the federal court. We have at the present time an eight-hour law in Arizona, Oklahoma, New Mexico, California, Idaho, Wyoming, New York and Massachusetts. All of those states have enacted laws or constitutional provisions for an eight-hour law on all public works and contracts and subcontracts for such public works. A case arising in Kansas, where the subcontractor was not a resident of that state, allowed a case like the one we had in Ohio, the Clements Construction Company vs. The City of Cleveland, to go to the federal court, and the federal court held that the state had a right, under its police power, to regulate the hours of labor of workmen employed upon public works.
((* * *
“It seems to me that we as a state certainly have a right to establish the hours of labor for men employed by the state and for the state. Certainly we have a right, as held by the federal court, and I do not see any reason why we as a state cannot incorporate this provision into our constitution, to protect this fundamental principle, which we as a people surely have a legal right and a lawful right to do.” 2 Proceedings and Debates, supra, at 1339.

It can scarcely be doubted that Proposal No. 209 was offered solely in response to Cleveland v. Clements Bros. Constr. Co. (1902), 67 Ohio St. 197, 65 N.E. 885, and like cases invalidating maximum hour legislation on freedom of contract grounds. Since the proposal dealt with setting maximum hours of labor, several delegates logically suggested that this subject was already covered by Proposal No. 122, agreed to the night before. 2 Proceedings and Debates, supra, at 1340-1341. (There were also suggestions of combining the two proposals. Id. at 1342-1344.) However, the discussion centered on whether the Constitution itself should set the eight-hour day or simply authorize the legislature to do so. Mr. Tetlow feared that the legislature would not act, but the others found this fear groundless since the legislature had so acted just a few years earlier. Id. at 1341. A question arose as to the constitutionality of any such Act by the legislature, and it was strictly within this context that the language of Proposal No. 122 was raised:

“Mr. HALFHILL: Was it stated by you that a few years ago the legislature did pass a law fixing the eight-hour law for labor that was held to be unconstitutional as in conflict with section 1 and section 19 of the bill of rights?
“Mr. TETLOW: Correct.
“Mr. HALFHILL: Now the proposal we adopted last night expressly said at the end of it that no other provision in the constitution should impair or limit this power (referring to the power of the forepart of that proposal). Why haven’t you got the best grant of power there can be secured under a constitutional provision, and why is this necessary?
“Mr. TETLOW: The question is this — we have a question here now. It is a question of constitutional provision, and the *32question before this Convention at this time is the recognition of the right to an eight-hour day for public work. So, I say, why leave the question with the general assembly, which may never pass the law.
<<* * *
“Mr. HARRIS: * * * The resolution last evening absolutely gives you, as you well know, the same constitutional right as is here embodied .in Proposal No. 209. Therefore the supreme court could not possibly declare a law passed under it void — assuming that the proposal of Mr. Farrell, which we passed yesterday, is adopted by the people — the supreme court could not possibly set aside on the ground of unconstitutionality any measure along these lines, limiting the hours of labor, adopted by the legislature. * * *” Id. at 1341-1342.

See Professor Holcombe’s analysis, quoted at length by Mr. Farrell, in 2 Proceedings and Debates, supra, at 1331.

Moreover, Proposal Nos. 122 and 209 were not the only measures aimed at overcoming judicial decisions striking down legislation on freedom of contract principles. Consider also Proposal No. 166, entitled “Relative to liens,” what is now Section 33, Article II. In 1894 the General Assembly enacted a statute which gave a *33lien on property to subcontractors, laborers, and materialmen even in absence of a contract between the property owner and these persons. See 91 Ohio Laws 135. Similar legislation had been upheld in other states. See, e.g., Henry & Coatsworth Co. v. Evans (1889), 97 Mo. 47, 10 S.W. 868; Mallory v. La Crosse Abattoir Co. (1891), 80 Wis. 170, 49 N.W. 1071. Nevertheless, this court in Palmer & Crawford v. Tingle (1896), 55 Ohio St. 423, 45 N.E. 313, invalidated this law on grounds that it infringed upon the owner’s and contractor’s liberty of contract. Interestingly, even the United States Supreme Court indicated that it did not believe the Ohio statute violated either the Ohio or the federal Constitution. See Great Southern Fire Proof Hotel Co. v. Jones (1904), 193 U.S. 532.

Solely in response to Palmer & Crawford, Proposal No. 166 was introduced at the 1912 Constitutional Convention:

“Mr. ROCKEL: I think we are wasting a great deal of time discussing the question of the policy of the law. That is entirely in the hands of the legislature. Almost all the states of this Union have passed just such laws as this would authorize our legislature to pass. They have made it different in its application. In some states they have required the contractor to file a statement with the owner of the property as to all material men and all subcontractors and matters of that character. In other states they provide different details. It would be entirely unnecessary to have this amendment at all in the present constitution were it not for the peculiar view that our supreme court took of our present constitution. That is all there is to it. We might have all these details of what is in the laws of various other states carried out under the present constitution but for the decision of the supreme court of Ohio which prevents it. And I think that if that question comes before our supreme court they mil reverse that decision, but it stands now as a bulwark in opposition to everybody.” (Emphasis added.) 2 Proceedings and Debates, supra, at 1416.

The genesis of our constitutional provision on workers’ compensation is similar. Proposal No. 24, entitled “Relative to requiring the genera] assembly to pass laws relative to compensation of employes,” was passed by the constitutional convention (2 Proceedings and Debates, supra, at 1952) and subsequently adopted by the people as Section 35, Article II. In 1911 the General Assembly had adopted a State Insurance Fund workers’ compensation system. The constitutionality of this legislation was upheld over, inter alia, freedom of contract, by four sitting members of this court in State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602. At the time this decision was rendered Proposal No. 24 was pending before the Committee on Labor, having been referred to that committee on January 22, 1912. 1 Proceedings and Debates, supra, at 96.

The proposal came on for its second reading on April 23, 1912, approximately two months after the Yaple decision. 2 Proceedings and Debates, supra, at 1346. The reference to Yaple at that point is instructive:

“Mr. CORDES: Mr. President and Gentlemen of the Convention: Proposal No. 24 undertakes to write into the constitution of Ohio a constitutional provision making secure the workmen’s compensation law passed by the last legislature, and declared constitutional by the Ohio supreme court by a vote of 4 to 2. Labor asks that this proposal be adopted, because we believe that by writing it into the constitution it will make it possible to continue this beneficial measure without any further fear of a constitutional question being raised again on this matter. * * *
<<* * *
“I believe that it is but just and humane in this age of progress and rapidity in industrial affairs that the industrial workers should be protected against accidents and *34occupational diseases, and that more attention should be given to human rights rather than, as we have done in the past, devote all our attention to property rights [e.g., freedom of contract]. * * *” (Emphasis added.) Id. at 1346-1347.

The common theme running through the debates on all these provisions is obvious — the framers wanted to improve wages, hours, and health and safety of employees. Employer and employee freedom of contract, as interpreted in Lochner, Clements Bros., Palmer & Crawford, supra, and countless other cases, stood as the principal impediment to this effort. Accordingly, provisions were placed in our organic law to overcome this impediment.

See, also, Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Pub. Util. Comm. (1972), 31 Ohio St. 2d 81, 85-89, 60 O.O. 2d 52, 54-56, 285 N.E. 2d 371, 373-375 (L. Brown, J., dissenting).

See, also, dissenting opinions of Justice Wanamaker in Patten v. Aluminum Castings Co. (1922), 105 Ohio St. 1, 49-93, 136 N.E. 426, 448-453; Toledo Cooker Co. v. Sniegowski (1922), 105 Ohio St. 161, 161-180, 136 N.E. 904, 904-910; and American Woodenware Mfg. Co. v. Schorling (1917), 96 Ohio St. 305, 332-359, 117 N.E. 366, 374-380. (These cases were all overruled in Ohio Automatic Sprinkler Co. v. Fender (1923), 108 Ohio St. 149, 141 N.E. 269, paragraph three of the syllabus.) Justice Wanamaker also made reference to Section 34, Article II, and Patten, supra, in a completely unrelated context in his dissenting opinion in Local Tel. Co. v. Cranberry Mut. Tel. Co. (1921), 102 Ohio St. 524, 568, 133 N.E. 527, 539.

See, also, State v. Bondi (1957), 166 Ohio St. 448, 2 O.O. 2d 442, 143 N.E. 2d 579 (appeal dismissed for lack of a debatable constitutional question).

Section 34, Article II has been cited, though not relied upon, by this court in related contexts. For example, in Wilson v. Zanesville (1935), 130 Ohio St. 286, 4 O.O. 311, 199 N.E. 187, this court upheld a local ordinance regulating the hours of labor in barber shops. Section 34 was mentioned only with reference to the term “laws” as used therein, the court noting that the term does not include municipal ordinances. For the same proposition Section 34 was cited in Cincinnati v. Correll (1943), 141 Ohio St. 535, 26 O.O. 116, 49 N.E. 2d 412, which overruled Wilson and struck down an ordinance similar to the one upheld in Wilson.

In Fuldauer v. Cleveland (1972), 32 Ohio St. 2d 114, 61 O.O. 2d 374, 290 N.E. 2d 546, Section 34 was held inapplicable to a charter provision establishing a formula for computing the compensation of municipal safety forces. Noting that Section 34 is not self-executing, this court upheld the charter provision.

In Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505, this court held that a contract between an employer and his employee which released the employer from liability for any injury incurred by the employee as a result of the employment is against public policy and unenforceable. Section 34 was cited as evidence of the “broad humanitarian policy of the state to

*36safeguard the life, limb, health and safety of its people employed in the industrial world * * *.” Id. at 70, 115 N.E. at 507.

In the following cases Section 34 was mentioned with little discussion or no discussion at all: Cleveland, ex rel. Neelon, v. Locher (1971), 25 Ohio St. 2d 49, 54 O.O. 2d 189, 266 N.E. 2d 831; Malloy v. Westlake (1977), 52 Ohio St. 2d 103, 6 O.O. 3d 329, 370 N.E. 2d 457; Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, 23 OBR 260, 491 N.E. 2d 1114; State Personnel Bd. of Review v. Bay Village Civil Service Comm. (1986), 28 Ohio St. 3d 214, 28 OBR 298, 503 N.E. 2d 518.

Having thoroughly reviewed every decision of this court that relied on, discussed, or even mentioned Section 34, Article II, I reach the unmistakable conclusion that this constitutional provision has never been given the incredible breadth ascribed to it by the majority today.

The only vestige of our ruling in Dayton F.O.P. is that the second sentence of R.C. 4117.01(F)(2) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. at paragraph two of the syllabus.

I suppose it could be hypothesized that the second sentence of R.C. 4117.01(F) (2) was not necessarily “favorable” to all employees and, thus, that that particular sentence was not enacted pursuant to Section 34, Article II. However, this would be contrary to the majority’s premise that all of the Public Employees’ Collective Bargaining Act was enacted pursuant to Section 34, Article II. Moreover, such a piecemeal approach to the constitutionality of this Act would be ridiculous, as it would require this court to evaluate each section of the Act on the basis of whether or not it “favored” the employee. Each section we find “favorable” to employees would be beyond constitutional question, while each section not “favorable” could be stricken on state constitutional grounds. Aside from the difficulty of all this, such an analysis would completely eliminate any balance between employer and employee interests sought to be achieved in the Act, as well as raise obvious equal protection concerns.

Moreover, this is not the first time this court has engaged in this very same analysis. Consider Strain v. Southerton, supra, which asked the following questions in evaluating the Minimum Wage Act: “* * * [Djoes such act exceed the contemplation of Section 34, Article II of the Constitution, or constitute the delegation of legislative power in contravention of Section 26, Article II of the same instrument?” Id. at 159, 35 O.O. at 170, 74 N.E. 2d at 72. The first question was disposed of in a single sentence: “The Ohio Minimum Wage Act is a welfare measure passed by the General Assembly pursuant to the authority conferred by Section 34, Article II of the Constitution.” Id. at 160, 35 O.O. at 170-171, 74 N.E. 2d at 73. However, it took several pages of analysis to reach the conclusion that the Act “does not represent delegation of legislative power * * *.” Id. at 162, 35 O.O. at 171, 74 N.E. 2d at 73.

It seems to me that if the court in Strain v. Southerton had held the same view of Section 34, Article II as is held by today’s majority, the answering of the first question posed therein should have ended the inquiry. Nothing in the Minimum Wage Act could possibly violate any provision of the Ohio Constitution. However, as I read Strain v. Southerton, and paragraph one of today’s syllabus, I see clear implication that even legislation passed under Section 34, Article II, might in some situation constitute an unlawful delegation of legislative authority in violation of Section 26, Article II. With this implication today’s majority analysis of- Section 34, Article II is completely irreconcilable.

See, also, State, ex rel. Mullin, v. Mansfield, supra, at 132, 55 O.O.2d at 241, 269 N.E. 2d at 604; State, ex rel. Kohl, v. Dunipace (1978), 56 Ohio St. 2d 120, 121, 10 O.O. 3d 309, 382 N.E. 2d 1358, 1359; Dies Electric Co. v. Akron (1980), 62 Ohio St. 2d 322, 325, 16 O.O. 3d 365, 367, 405 N.E. 2d 1026, 1028; Novak v. Perk (1980), 64 Ohio St. 2d 43, 45-46, 18 O.O. 3d 251, 252, 413 N.E. 2d 784, 786; State Personnel Bd. of Review v. Bay Village Civil Service Comm. (1986), 28 Ohio St. 3d 214, 217, 28 OBR 298, 302, 503 N.E. 2d 518, 521; Fenton v. Enaharo (1987), 31 Ohio St. 3d 69, 70-71, 31 OBR 183, 184, 509 N.E. 2d 67, 68-69; Ohio Assn. of Pub. School Emp., Chapter No. 471 v. Twinsburg (1988), 36 Ohio St. 3d 180, 182, 522 N.E. 2d 532, 534.

See, also, State, ex rel. Lynch, v. Cleveland (1956), 164 Ohio St. 437, 52 O.O. 287, 132 N.E. 2d 118, paragraph one of the syllabus; State, ex rel. Arey, v. Sherrill (1944), 142 Ohio St. 574, 578, 27 O.O. 505, 507, 53 N.E. 2d 501, 504; Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 359-360, 103 N.E. 512, 517-518.

The precise question at issue, whether the “as are not in conflict with general laws” language in Section 3, Artiele XVIII modifies only the police and sanitary powers or also the powers of local self-government, can be resolved by tracing *40Proposal No. 272, “Relative to the government of municipalities,” through its many changes.

The original draft of Section 7, Article XVIII provided:

“[‘]Any city or village may frame and adopt a charter for its own government and may exercise thereunder all powers of local self-government; but all such charters shall be subject to the general law of the state, except in municipal affairs.f’]” See 2 Proceedings and Debates, supra, at 1446 (statement of Mr. Rockel).

There was evidently some disagreement over the words “municipal affairs,” as the use of that term in the California Constitution had caused significant definitional problems for the courts of that state. Id. at 1446-1447. The phrase “except in municipal affairs,” was dropped and replaced with the phrase “affecting the welfare of the state, as a whole.” Thus when it was reported back from committee, Section 7 read:

“[‘]Any city or village may frame, adopt or amend a charter for its government, and may exercise thereunder all powers of local self-government; but all such charters and powers shall be subject to general laws affecting the welfare of the state, as a whole.[’]” Id. at 1313.

At this stage of the proceedings Section 3 provided:

“□Municipalities shall have power to enact and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws, affecting the welfare of the state, as a whole, and no such regulation shall by reasons of requirements therein, in addition to those fixed by law, be deemed in conflict therewith unless the general assembly, by general law, affecting the welfare of the state as a whole, shall specifically deny all municipalities the right to act thereonj’]” Id.

There followed some discussion of whether the modifier “affecting the welfare of the state as a whole” added anything to the term “general laws.” Id. at 1468-1472. An amendment was offered by Mr. Doty to strike the balance of Section 3 after the word “laws,” and to strike from Section 7 'the modifier “affecting the welfare of the state, as a whole.” Id. at 1472. This amendment was subsequently agreed to. Id. at 1474.

During the discussion on Mr. Doty’s amendment concerns were raised about its effect in light of the prior deletion of the phrase “except in municipal affairs”:

“Mr. HARRIS, of Hamilton: I call your attention to original Proposal No. 272 in your proposal book, which came to the committee on Municipalities. In line 32 of the original proposal we have the words, ‘except in municipal affairs.’ Those four words were almost demanded by your local people and those words are taken from the California constitution and they were cut out of the draft for the reason stated on the floor and the qualifying words that you now want to eliminate were substituted in their place. I suggest to you that if you are going to cut out everything after the words ‘general laws’ you should add the words ‘except in municipal affairs,’ or you will be stoned to death when you reach Cleveland. I tell you you are destroying municipal home rule.” Id. at 1473.

Mr. Doty responded, again raising the concerns expressed earlier regarding that language: “I have no objection to putting in the exception if we can understand what it means or if we have any fair chance of understanding it. * * *” Id.

Mr. Doty’s amendment was passed, and there followed a discussion of various specific issues relating to the appropriation of property for public improvements and the regulation of public utilities. At this point Mr. Crosser expressed his own opposition to the Doty amendment and offered an additional amendment to Sections *413 and 7: in Section 3, addition after the word “laws” of “but such regulations shall be subject to the general laws of the state, except in municipal affairs”; and in Section 7, addition after the word “laws” of “except in municipal affairs.” Mr. Crosser stated:

“It seems to me that if we are to have any home rule whatever we should have some language of that kind in the proposal. * ** * Let us give citizens by the initiative and referendum real self-government, and let us also give the municipalities real self-government. * * * Let us strike the shackles of political serfdom from municipalities.” Id. at 1485.

A substitute to this amendment was then offered by none other than Mr. Knight, described by the majority today as “a chief proponent of the [home-rule] amendment.” Mr. Knight’s proposal consisted of striking the word “power” from Section 3 and inserting the phrase “authority to exercise all powers of local self government, and.” Id. He described this substituted proposal as follows:

“That substitute just read undertakes, and I think succeeds, to cover the same thing intended by the amendment of the gentleman from Cuyahoga [Mr. Crosser] and avoids the phrase ‘in municipal affairs.’
“The substitute I offer places in section 3 the same phrase that occurs in section 7. It is already in section 7. Section 7 deals with those cities which choose to frame charters for themselves, while section 3 deals with the municipalities which choose to remain under general laws, and this puts both kinds of municipalities upon the same footing, so that those who shall operate under general laws shall have authority to exercise all powers of local self-government, and enact and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws. The same provision is in section 7, with reference to charters of cities framing their own charters, that any city or village may frame, adopt or amend a charter for its government, and exercise thereunder all powers of local self-government, but all such charters and power shall be subject to general laws. We have here identically the same provision. The language may vary a word or two, but it does not vary at all in sense or substance. It is my belief that the insertion of these words restores to section 3 a vital feature which was by the last action of this Convention before recess today stricken out; that is, in our effort to get away from the question which I am certain we all want to get away from, a good deal more was stricken out that was helpful to municipal home rule, and more than was intended, and it is with a view of restoring to the proposal that which ought to be there in our judgment, without breaking into anything which anybody can by any possibility term a sleeper.
“Personally I feel that this goes far enough to give us in the cities of this state an adequate measure of municipal home rule, and that it does not in any way raise any controverted question such as we had the flurry over this morning. I am not attempting to insert anything except what is attempted to be accomplished by the amendment of the gentleman from Cuyahoga [Mr. Crosser], but his amendment does contain language which the courts of California have held to be language of uncertain meaning.” (Emphasis added.) Id.

There was further discussion of the Crosser and Knight amendments, as well as the issue of liquor control. An amendment was offered to replace all of Section 7 with the following:

“Any city or village may frame and adopt or amend a charter for its government and may subject to the provisions of section 3 of this article exercise all powers of local self-government.” Id. at 1489.

This amendment was agreed to. As to *42the pending amendments of Crosser and Knight, the Knight substitute, described by Knight as having the same effect as the Crosser amendment, was then agreed to. At this point Section 3 had reached its current form, and Section 7 was substantially in its current form (the words “city or village” stood in place of the word “municipality”), and Proposal No. 272 was submitted to and subsequently adopted by the people.

Having traced the evolution of Proposal No. 272, it is clear that the interpretation of Sections 3 and 7, Article XVIII, made in Canada, supra, was a correct one. Originally only local “police, sanitary and other similar regulations” were subject to the “general laws.” Mr. Crosser offered an amendment, to reinstate the reference to “municipal affairs,” in an attempt to make clear that with regard to local self-governance general laws would not control. Mr. Knight’s substituted amendment was stated as intending to have the same effect, and it was this substitute that was subsequently adopted. The reader will note that the comma whose absence after the word “self-government” has generated much of this controversy, see State, ex rel. Petit, v. Wagner, supra, was included in the adopted Knight amendment, though it appears to have been inadvertently deleted when Proposal No. 272 was passed. 2 Proceedings and Debates, supra, at 1485 and 1496. The fact that the comma was not added later does not change the Knight amendment’s original intent, as the delegate who proposed inserting the comma conceded that it would not enlarge or curtail the powers provided in Section 3. Id. at 1860. Thus, the words inserted by the Knight amendment were not intended to be modified by the phrase “as are not in conflict with general laws.” This was the precise holding in paragraph four of the Canada syllabus, and in numerous cases before and after.