[Cite as Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce , 127 Ohio St.3d 511, 2010-Ohio-6207.]

B OARD OF T RUSTEES OF THE T OBACCO U SE P REVENTION AND C ONTROL F OUNDATION ; A MERICAN L EGACY F OUNDATION ET AL ., A PPELLANTS , v . B OYCE , T REASURER , ET AL ., A PPELLEES . [Cite as Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce , 127 Ohio St.3d 511, 2010-Ohio-6207.] Constitutional law — Custodial account s — Retroactivity Clause — Contract
Clauses — Tobacco Use Prevention and Cessation Trust Fund — Reallocation of funds — 2008 Sub.H.B. No. 544. (No. 2010-0118 — Submitted July 6, 2010

— Decided December 22, 2010.)
A PPEAL from the Court of Appeals for Franklin County, Nos. 09AP-768, 09AP-769, 09AP-785, 09AP-786, 09AP-832, and 09AP-833, 185 Ohio App.3d 707, 2009-Ohio-6993.

__________________ P FEIFER , A CTING C.J. {¶ 1} The issue in this case is wh ether certain sections of 2008 Am.Sub.S.B. No. 192 (“S.B. 192”) and 2008 Sub.H.B. No. 544 (“H.B. 544”) are
constitutional. We conclude that the sections are constitutional and affirm the judgment of the court of appeals. Factual and Procedural Background {¶ 2} In November 1998, the Ohio attorney general entered into a master settlement agreement ("MSA") with the largest tobacco-product manufacturers in the United States that resolved litigation to recover healthcare expenses incurred by the states as a result of tobacco-relate d illnesses. Pursuant to the MSA, Ohio was to receive $10.1 billion in payments through 2025; there was no restriction on how the money could be spent.S UPREME C OURT OF O HIO

2 {¶ 3} In 2000, the General Assembly enacted Am.Sub.S.B. No. 192, 148 Ohio Laws, Part V, 10767, creating R.C. Chapter 183. The new law distributed proceeds from the MSA to eight differe nt funds, including $235 million to the newly created Tobacco Us e Prevention and Cessation Trust Fund. Money from
the trust fund was to be a ppropriated to an endowment fund, which was to “be in the custody of the treasurer of state but * * * not be a part of the state treasury.” Former R.C. 183.08, 148 Ohio Laws, Part V, at 10785. The endowment fund was to fund programs and resear ch related to tobacco-use prevention and cessation. Former R.C. 183.07, 148 Ohio Laws, Part V, at 10784. Former R.C. 183.08 directed that a newly cr eated Tobacco Use Preven tion and Control Foundation (“foundation”) would serve as tr ustee of the endowment fund. {¶ 4} On April 2, 2008, the governor and legislative leaders announced a bipartisan agreement to spend state funds to stimulate the economy. The agreement called for reallocating a pproximately $230 million then in the endowment fund to the stimulus pack age. On April 8, 2008, the General Assembly passed S.B. No. 192, which li quidated the endowment fund. On the same day, the executive director of th e foundation, pursuant to a motion passed by the board of the foundation, executed a contract with American Legacy Foundation ("ALF") to transfer $190 million from the endowment fund to ALF. The following day, the foundation filed a complaint against the treasurer seeking to enjoin the enforcement of S.B. 192 a nd asking that the st atute be declared
unenforceable. The board then rescinde d its resolution authorizing the $190 million transfer to ALF. ALF moved to intervene as a plaintiff in the lawsuit brought by the foundation and filed a compla int requesting a declaration that H.B. 192 be declared unconstitutional and an inj unction to stop the state treasurer from transferring the money in the endowment fund to the jobs fund.January Term, 2010

3 {¶ 5} On May 6, 2008, the General Assembly enacted H.B. 544, which abolished the foundation and gave the Ohio Department of Health (“ODH”) responsibility for any residual matters, incl uding legal obligations. Section 4 of
H.B. 544 directed the state treasurer to liquidate the endow ment fund, deposit the lesser of $40 million or 14.8 percent of the pr oceeds into the state treasury to the credit of a tobacco-use-prevention fund, and deposit the remaining proceeds from the liquidation (approximately $190 million) into the state treasury to the credit of a jobs fund. On May 9, 2008, ALF ame nded its complaint to contest the constitutionality of H.B. 544 as well as S.B. 192. {¶ 6} On May 27, 2008, Robert G. Mille r Jr. and David W. Weinmann, former smokers who had participated in the foundation’s cessa tion programs, filed a complaint for declaratory relief, claiming that the enactment of R.C. Chapter 183 and the transfer of money into the e ndowment fund had created a trust that the General Assembly did not have the power to change. Miller and Weinmann claimed that they were beneficiaries of the trust because they were participants in programs funded by the foundation, and they sought a judgment declaring that (1)
H.B. 544 is unconstitutional under the Contract Clauses of Secti on 10, Article I of
the Constitution of the United States a nd Section 28, Article II of the Ohio Constitution and (2) H.B. 544 illegally atte mpts to appropriate nontreasury funds
in breach of an irrevocable trust. Their action was consolidated with ALF's lawsuit in May 2008. {¶ 7} On August 11, 2009, the trial court entered judgment against ALF, finding that the contract between it and the foundation was invalid. The court also entered final judgment for Miller and Weinmann on their claims, finding that the
endowment fund was an irrevo cable trust and that the portions of H.B. 544 that transferred money from the e ndowment fund violated the Retroactivity Clause of Section 28, Article II of the Ohio Constitu tion and the Contract Clauses of theS UPREME C OURT OF O HIO

4 United States and Ohio Constitutions. Accordingly, the trial court permanently enjoined the state of Ohio, the treas urer, the attorney general, and ODH (“appellees”) from enforcing any provision of H.B. 544 and S.B. 192 that related
to the endowment fund. {¶ 8} On appeal, the court of appeals held that the endowment fund was
not an irrevocable charitable trust and th at appellees had no vested rights that
could be violated. Tobacco Use Prevention & Contro l Found. Bd. of Trustees v. Boyce , 185 Ohio App.3d 707, 2009-Ohio-6993, 925 N.E.2d 641, ¶ 41-46. The court reasoned that the appellants offe red no authority supporting the proposition that custodial funds, once created, cannot be abolishe d or transferred by the General Assembly. Id. at ¶ 34 (a custodi al account is an account that is in the custody of the treasurer of the state but that is not part of the state treasury. R.C. 113.05(B). For an example, see former R. C. 183.08(A)). The court also affirmed
the decision of the trial court that th e contract between ALF and the foundation was invalid, stating that the resolution a pproving the contract had been improperly discussed only in executive session, in violation of R.C. 121.22, Ohio’s Open Meetings Act, and thus the executive director had no authority to enter into the contract with ALF. Id. at ¶ 27. {¶ 9} We accepted the discretionary a ppeal of Miller, Weinmann, and ALF (“appellants”). Analysis {¶ 10} The General Assembly has plenary power to enact legislation; it is limited only by the Ohio Constitution and the Constitution of the United States. Section 1, Article II, Ohio Constitution. See Williams v. Scudder (1921), 102 Ohio St. 305, 307, 131 N.E. 481. "[B]efore an y legislative power, as expressed in a statute, can be held invalid, it must appear that such power is clearly denied by some constitutional provision." Id. See Lehman v. McBride (1863), 15 Ohio St.January Term, 2010

5 573, 592 (when the power of the General A ssembly to enact a law is questioned, the proper inquiry is whether the law is clearly prohibited by the Constitution). Our inquiry, then, is whether the portions of H.B. 544 and S.B. 192 liquidating the endowment fund and placing the money in the jobs fund are clearly prohibited by
the Ohio Constitution. {¶ 11} The General Assembly's legislative power enables it to "pass any law unless it is specifically prohibited by the state or federal Constitutions." State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 162, 38 O.O.2d 404, 224 N.E.2d 906. See State ex rel. Poe v. Jones (1894), 51 Ohio St. 492, 504, 37 N.E. 945 ("whatever limitation is placed upon the exercise of that plenary grant of [leg islative] power must be found in a clear prohibition by the constitution"). No constitutional amendment was adopted in Ohio restricting the use of the tobacco settlement money. In the absence of a constitutional provision, the Gene ral Assembly had the power to change the use of the settlement money by en acting H.B. 544 and S.B. 192. The Retroactivity Clause {¶ 12} Section 28, Article II of the Ohio Constitution states that "[t]he general assembly shall have no power to pass retroactive laws." In Van Fossen v. Babcock & Wilcox Co . (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus, this court stated, "T he issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply."
See Smith v. Smith , 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, at ¶ 6, quoting Bielat v. Bielat , 87 Ohio St.3d 350, 353, 721 N.E.2d 28 ("To determine whether a law is unconstitutionally retroactive, we must first 'determine whether the General Assembly expressly intended the statute to apply retroactively' "). Appellants argue that Section 4 of H.B. 544 clearly indicates that the act isS UPREME C OURT OF O HIO

6 retrospective in its application. Howeve r, the language of Section 4 does not indicate that the General Assembly expressly intended the act to apply retroactively. Instead, the language demonstrates the General Assembly’s intention that the act be applied prospec tively: "Notwithstanding any provision of law to the contrary, on the effective date of this section, the Treasurer of State shall liquidate the Tobacco Use Prev ention and Control Foundation Endowment Fund created by section 183.08 of the Revi sed Code in a prudent manner. The Treasurer of State shall deposit into the state treasury to the credit of the Tobacco Use Prevention Fund (Fund 5BX0), which is created in section 3701.841 of the Revised Code, the lesser of $40 million or 14.8 per cent of the proceeds from liquidation. The Treasurer of State sh all deposit the remaining proceeds from liquidation into the state treasury to the credit of the Jobs Fund (Fund 5Z30), which is hereby created." {¶ 13} On its face, the statute applies only from the date of its enactment, not to acts, events, or cases that predate its enactment. Van Fossen , 36 Ohio St.3d at 105, 522 N.E.2d 489. In E. Liverpool v. Columbiana Cty. Budget Comm ., 114 Ohio St.3d 133, 2007-Ohio-3759, 870 N.E.2d 705, ¶ 31, we stated that "when the application of a statute to the case before us involve s only a prospective operation, we will not entertain a retroactivity claim under Section 28, Article II. State v. Hawkins (1999), 87 Ohio St.3d 311, 314, 720 N.E.2d 521. That doctrine bars East Liverpool's re troactivity claim." {¶ 14} The doctrine bars appellants' claim in this case. We have also stated that the "retroactivity clause nullif ies those new laws that 'reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].' Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59 N.E. 749, 752." Bielat , 87 Ohio St.3d at 352-353, 721 N.E.2d 28. In Van
Fossen , this court stated that the constitutional limitation against retroactive lawsJanuary Term, 2010

7 " ‘include[s] a prohibition against la ws which commenced on the date of enactment and which operated in futuro, but which, in doing so, divested rights, particularly property rights, which had been vested anterior to the time of
enactment of the laws.’ " 36 Ohio St.3d at 105, 522 N.E.2d 489, quoting Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence (1936), 20 Minn.L.Rev. 775, 781-782. In E. Liverpool , after stating that the law operated prospectively, this court addressed East Live rpool's contention “that the statute ‘permitted the retrospective extin guishment of East Liverpool’s * * * preexisting legal right under former R.C. 5747.53 and 5747.63.’” 114 Ohio St.3d 133, 2007-Ohio-3759, 870 N.E.2d 705, at ¶ 33. Accordingly, we now address appellants' claim that H.B. 544 extingu ished their preexisting property rights. Does H.B. 544 Affect Pr eexisting Property Rights? {¶ 15} Appellants first argue that the f unds held by the foundation do not belong to the state, citing former R.C. 183.08(A), which stated that the
“endowment fund * * * shall be in the cust ody of the treasurer of state but shall not be a part of the state treasury." According to appellants, the creation of a
custodial account that was not part of the state treasury indicated that the General Assembly intended to create a trust se tting the funds permanently outside the control of future legislation. {¶ 16} Although the General Assembly's plenary legislative power is expansive, it is not all-inclusive. It does not include the ability to bind future General Assemblies. "No general assembly can guarantee the continuity of its legislation or tie the ha nds of its successors." State ex rel. Public Institutional Bldg. Auth. v. Griffith (1939), 135 Ohio St. 604, 619, 14 O.O 533, 22 N.E.2d 200.
This court relied on State ex rel. Fletcher v. Executive Council of the State of Iowa (1929), 207 Iowa 923, 223 N.W. 737, 740, in wh ich the Supreme Court of Iowa stated that "no General Assembly has power to render its enactment irrevocableS UPREME C OURT OF O HIO

8 and unrepealable by a future General Assembly. No General Assembly can guarantee the span of life of its legisla tion beyond the period of its biennium. The power and responsibility of legislation is always upon the existing General Assembly. One General A ssembly may not lay its ma ndate upon a future one. Only the Constitution can do that. * * * The power of a subsequent General Assembly either to acquiesce or to repeal is always existent." {¶ 17} In Section 17 of S.B. 192, 148 Ohio Laws, Part V, at 10802, the General Assembly acknowledged "the right of each Genera l Assembly to evaluate independently the budgetary pr iorities of the state." Furthermore, the creation of
custodial accounts is a rather routin e business. R.C. 113.05(B). State appropriations that are not spent by an ag ency must be returned to the funds from which the appropriations were made at the end of the appropriation period. R.C. 131.33. The General Assembly uses cust odial accounts to operate outside the
strictures of R.C. 131.33. We consider the creation of a custodial account evidence that the General Assembly did not expect all the funds appropriated to the foundation to be spent within the bi ennium and that it did not want the unexpended funds to reve rt pursuant to R.C. 131.33. {¶ 18} Custodial accounts have been used in a variety of circumstances without violating the Constitution or rem oving the funds from the reach of the General Assembly. In Griffith , we stated that although payments made by patients in state-run hospitals might be used by the Department of Public Welfare to run the hospitals it operated, those payments we re "public funds, at all times subject to legislative control." 135 Ohio St. at 619, 14 O. O. 533, 22 N.E.2d 200. Even if the payments were earmarked by the Departme nt of Public Welfare to pay off bonds issued to provide money for the repair or construction of state welfare institutions, the General Assembly could default on the bonds and "divert these funds to other purposes." Id.January Term, 2010

9 {¶ 19} In State ex rel. Hoffman Candy & Ice Cream Co. v. Defenbacher (1951), 154 Ohio St. 429, 43 O.O. 351, 96 N.E.2d 295, we examined the rotary fund of the Department of Li quor Control, the funds of wh ich were not in the state treasury but were in the custody of the state treasurer. We noted that pursuant to statute, funds in excess of those necessa ry for operating the department were to "be paid into the general revenue fund." Id. at 431. Appellants also argue that once the General Assembly appropriated the funds to the foundation fund, the funds were spent and thus were beyond the reach of subsequent legislation. This argument makes sense only if the foundation is a trust, which we conclude it is not. It is axiomatic than an appropriation to a state agency is not an expenditure; thus appropriation of money to the foundation does not place the money beyond the reach of the General Assembly. {¶ 20} Appellants also argue that by allowing the money in the
endowment fund to be invested in co rporate stocks, the General Assembly
intended that the fund not be consider ed state money because the Constitution prohibits the investment of state funds in corporate stocks. Although this argument is plausible, the better explanation is that the General Assembly allowed unexpended funds to be inve sted in stocks because it knew that expenditures in the biennium would be significantly less than the appropriation. Generally, state funds must be spent within the biennium in which they are a ppropriated, and thus cannot be invested in corporate stocks , which are long-term investments. Investing the money in the endowment fund in corporate stocks allows the foundation to augment the fund. Allowing th e endowment fund to be invested in
stocks is not evidence of the creation of a trust. {¶ 21} Several states have passed constitutional amendments preventing
the reallocation of funds that were a llocated from the proceeds of the MSA to tobacco-use cessation and prevention. Sec tion 27, Article X, Florida Constitution;S UPREME C OURT OF O HIO

10 Section 18, Article VII, Id aho Constitution; Section 10.8, Article VII, Louisiana Constitution; Section 4, Article XII, Mont ana Constitution; Section 40, Article X,
Oklahoma Constitution. The Ohio Constitu tion, however, has not been amended to prevent the reallocation of tobacco-s ettlement proceeds, although it has been
amended to ensure that lo ttery revenue is used sole ly for educational purposes, Section 6, Article XV, Ohio Constitution. {¶ 22} Appellants have compared the foundation with various state pension plans. They argue that the f oundation and the pension plans are similar, but they are not. The endowment fund is not intended for th e benefit of named beneficiaries; the pension plans allo cate funds for the benefit of named beneficiaries. The retirement boards were given authority to establish separate legal entities to hold funds, see, e.g ., R.C. 145.11, the foundation was not. We
conclude that the foundation and the va rious pension plans are not equal. {¶ 23} There is a long-standing principle in American law that "[n]o person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit." New York Cent. RR. Co. v. White (1917), 243 U.S. 188, 198, 37 S.Ct. 247, 61 L.Ed. 667. See Fuller, The Morality of Law (1964) 60 (if reliance on existing law made a person "secure against any change in legal rules, the whole body of our law would be ossified forever"). No irrevocable trust was created; indeed, no trust was creat ed. Instead, we conclude that in 2000, a state agency was created that was abolished in 2008. We conclude that the law enacted in 2000 did not create a right th at was terminated by H.B. 544 and, therefore, that H.B. 544 is not an unconstitutionally re troactive law.
Contract Clause {¶ 24} Section 10, Article I, United Stat es Constitution states, "No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *."January Term, 2010

11 Section 28, Article II, Ohio Constitution stat es, "The general a ssembly shall have no power to pass * * * laws impairing the obligation of contracts * * *.” {¶ 25} Appellants make two contract-clause arguments. The first is that because the foundation is a trust, rea llocating the funds appropriated to the
endowment fund is a violation of a trust c ontract. We reject this argument based
on our conclusion that the foundation is not a trust. {¶ 26} The second argument addresses th e attempt by the foundation to place funds beyond the reach of the Ge neral Assembly by transferring approximately $190 million to ALF. Appe llants contend that the foundation and
ALF entered into a contract for the transf er of funds and therefore that H.B. 544 violates that contract by not allowing the transfer called for by the contract. For the following reasons, we conclude that there is no violation of the state and
federal contract clauses becau se no contract was formed. {¶ 27} R.C. 121.22(A) states, "This section shall be liberally construed to require public officials to take official action and to conduct all de liberations upon official business only in open meetings unless the subject matter is specifically excepted by law." {¶ 28} R.C. 121.22(H) states, "A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and
conducted at an executive session held in compliance with this section." {¶ 29} The trial court and the court of appeals concluded that the board
had violated R.C. 121.22 because the reso lution to contract with ALF resulted from nonpublic deliberations. Tobacco Use Prevention & Control Found. , 185 Ohio App.3d 707, 2009-Ohio-6993, 925 N.E.2d 641, ¶ 77. Appellants do notS UPREME C OURT OF O HIO

12 dispute this conclusion; instead, they contend that the board's attempts to comply with R.C. 121.22 were sabotaged by the attorn ey general’s office. They argue that the board would have been exempt pursu ant to R.C. 121.229(G)(3) if the attorney general had not prevented th e board's attorney from being present. Based on our review of the record, we conclude, as did the trial court and the court of appeals, that the board was not set up to violate the Open Meetings Act. Even if it had been, the board had at least one unassaila ble option available: it could have
discussed all relevant matters openly. It did not. Accordingly, we agree with the court of appeals that "the board violat ed R.C. 121.22 by deliberating in executive session upon matters that it was require d to discuss in open session." Tobacco
Use Prevention & Control Found. , 185 Ohio App.3d 707, 2009-Ohio-6993, 925 N.E.2d 641, ¶ 74. We affirm the judgment of the court of appeals, which held that
no contract was formed. Other Considerations {¶ 30} The question whether it is wise to enact legislation is not the same question as whether the legislation is constitutional. Bd. of Health v. Greenville (1912), 86 Ohio St. 1, 20, 98 N.E. 1019. Severa l amici curiae filed briefs in this case. Some of them argued that the f unds at issue would be better used for the original intended purpose (tobacco cessation) than the current intended purpose (jobs stimulus), and several argued the converse. None of those arguments
concerns a court of law. The General A ssembly has plenary legislative power. In the exercise of that power, the Gene ral Assembly evaluated Ohio's budget priorities and enacted S.B. 192 and H.B. 544. It is not for us to judge the wisdom of the General Assembly but to determine whether the exercise of its power comports with or violates the Ohio C onstitution. We conclude that S.B. 192 and
H.B. 544 do not violate the Ohio Constitution. ConclusionJanuary Term, 2010

13 {¶ 31} We affirm the judgment of the court of appeals. Judgment affirmed.
L UNDBERG S TRATTON , O’C ONNOR , O’D ONNELL , and L ANZINGER , JJ.,

concur. G ALLAGHER and H ARSHA , JJ., concur separately.
S EAN C. G ALLAGHER , J., of the Eighth Appellate District, sitting for
B ROWN , C.J.
W ILLIAM H. H ARSHA , J., of the Fourth Appellate District, sitting for C UPP , J.

__________________ G ALLAGHER , J., concurring. {¶ 32} I concur in the majority decision and agree that the General Assembly retained the power to rea llocate the tobacco settlement money by enacting 2008 Sub.H.B. No. 544 and 2008 Am.Sub.S.B. No. 192. I write separately to more closel y address the issues surrounding the actions of the General Assembly in creating the Tobacco Use Prevention and Cessation Trust
Fund and whether such actions created a trus t. In my view, the General Assembly arguably intended to create a trust and to irrevocably appropriate funds to that trust for antitobacco efforts. Though the purpose was noble, the efforts were ultimately unsuccessful. {¶ 33} Under the statutory scheme that was enacted, the Tobacco Use Prevention and Control Foundation was appoi nted as trustee of the endowment fund. Former R.C. 183.08, 148 Ohio Laws, Part V, 10767, 10785. The general management of the foundation was vested in a board of trustees. Former R.C. 183.04, 148 Ohio Laws, Part V, at 10785. The foundation was to establish and carry out a plan to reduce tobacco use by Ohioans. Former R.C. 183.07, 148 Ohio Laws, Part V, at 10784. Emphasis was to be given to Ohio’s youth and groupsS UPREME C OURT OF O HIO

14 disproportionately affected by the use of tobacco. Former R.C. 183.07, 148 Ohio Laws, Part V, at 10784. The endowment f und was in the custody of the treasurer of state, but it was set aside from the state treasury. Former R.C. 183.08(A), 148 Ohio Laws, Part V, at 10785. The foundation was to be self-sustaining. Former R.C. 183.08(B). 148 Ohio Laws, Part V, at 10786. However, even if the General Assembly had intended to permanently commit the funds to antitobacco efforts, the statutory scheme fell s hort of placing the funds beyond the reach of future legislation. {¶ 34} The endowment fund was created sole ly from state funds that were set aside to be administered for the purpos e of reducing tobacco use by Ohioans, with an emphasis on certain populations. The funds were public and were to be used for a specified public purpose for th e benefit of all Ohioans. Although appellants may have di rectly benefited from the programs that were created, the enabling statutes did not specify any person or entity as the beneficiary of the funds or create any private property interest . “This key element is lacking in many state funds that set aside money for a specific purpose and ar e ‘trust funds’ in name only. * * * The existence of named beneficiaries is what transforms the Fund from money set aside for a pur pose into a formal trust.” Wisconsin Med. Soc., Inc. v. Morgan , 2010-WI-94, 787 N.W.2d 22, ¶ 69-70. The funds were state funds, and because no protected third-part y property interests were created, they were subject to the legislature’s plenary power over state money. See Arizona Farm Bur. Fedn. v. Brewer (Nov. 12. 2010), Ariz. App. No. 1 09-0756, 2010 WL 4542393 at *7. Further, although the funds were placed outside the state treasury and were dedicated to a particular use, th e nature of the funds as state money was not altered, and the funds were not re moved from legislative control. See A.B.A.T.E. of Illinois, Inc. v. Giannoulias (2010), 401 Ill.A pp.3d 326, 341 Ill.Dec. 109, 929 N.E.2d 1188.January Term, 2010

15 {¶ 35} I believe that this is not a case where the General Assembly sought to encumber funds and bind future legisl atures. Rather, th e General Assembly failed to establish a proper trust to place the funds beyond the reach of subsequent legislation. Had a proper trust been cr eated, no two-year encumbrance problem
would exist. {¶ 36} There is no doubt that many Ohioans stood to benefit from the antitobacco programs that were funde d by the endowment fund. Though the result may seem unfair to some, the acts of the legislature were permissible and are not constitutionally infirm.
L UNDBERG S TRATTON , J., concurs in the foregoing opinion.

__________________ H ARSHA , J., concurring. {¶ 37} Once the legislature initially placed the proceeds from the master settlement agreement (“MSA”) between the state and the tobacco-product manufacturers into the state treasury, Section 22, Article II of the Ohio Constitution prohibited the legislature from subsequently creating an irrevocable public trust with those funds. As a result, the unexpended money in the endowment fund was subject to rea ppropriation by the legislature. {¶ 38} Section 22, Article II of the Ohio Constitution states: “No money shall be drawn from the treasury, except in pursuance of a specific appropriation, made by law; and no appropr iation shall be made for a longer period than two years.” {¶ 39} Under former R.C. 183.02, 148 Ohio Laws, Part V, 10767, 10777, the legislature directed that “[a]ll payments received by the state pursuant to the tobacco master settlement ag reement shall be deposited in to the state treasury to
the credit of the tobacco master settle ment agreement fund, which is hereby created.” Once deposited into the MSA f und, the General Assemb ly provided thatS UPREME C OURT OF O HIO

16 the money was to be shifted into eight different funds, includi ng the Tobacco Use Prevention and Cessation Trust Fund, see former R.C. 183.02(A) through (H), 148 Ohio Laws, Part V, at 10778-10789, which was “created in the state treasury,” former R.C. 183.03, 148 Ohio Laws, Part V, at 10782. {¶ 40} The legislature then appropriate d money from this fund into an endowment fund. See former R.C. 183.08( A), 148 Ohio Laws, Part V, at 10785. Under former R.C. 183.08(A), the endowment fund was to “be in the custody of the treasurer of state but shall not be a part of the state treasury.” Based on this language, the majority opinion views th e endowment fund as a “custodial fund”
removed from the biennial appropriation cycle, i.e., unexpended money in the endowment fund that did not automatically re vert to the treasury after two years. However, this interpretation of former R.C. 183.08 overlooks the plain language of Section 22, Article II of the Ohio Constitution. {¶ 41} In State ex rel. Rothbacher v. Herbert (1964), 176 Ohio St. 167, 27 O.O.2d 48, 198 N.E.2d 463, Katharina Rothb acher owned a savings deposit in a savings and loan company. The comp any dissolved, and a ll unclaimed deposits, including Rothbacher’s deposit, were pl aced in a “regular account,” i.e., an account of funds held in trust by the stat e treasurer, subject to the order of the superintendent of building and loan associations. Id. at 167. Subsequently, the state auditor, pursuant to statute, had the funds transferred into the General
Revenue Fund. Id. Rothbacher then s ought a writ of mandamus to compel the state treasurer to return her money. Id. at 168. {¶ 42} This court denied the writ, holding that Rothbacher’s funds were initially held in the regular account, subject to the order of the superintendent, and required no prior appropriation by the Ge neral Assembly. Id. at 169. But once the funds were transferred and became pa rt of the General Revenue Fund, they were no longer subject to the order of the superintendent a nd “could be expendedJanuary Term, 2010

17 only as provided by law.” Id. Therefore, the funds could not be withdrawn unless the legislature made an appropriation under Section 22, Article II of the Ohio
Constitution. Id. at 170. {¶ 43} In this case, the MSA funds were initially deposited into the state treasury under former R.C. 183.02, 148 Ohio Laws, Part V, at 10777. Therefore, the legislature could not withdraw th em except in accordance with Section 22, Article II of the Ohio Constitution, i.e., in pursuit of a specific appropriation, not to exceed two years. After the MSA f unds had been deposited into the general fund, the legislature could not circ umvent the constitutional limitation by appropriating them into a custodial account. State ex rel. Rothbacher , 176 Ohio St. at 169-170, 27 O.O.2d 48, 198 N.E.2d 463. In other words, the General Assembly could not create a custodial account to indi rectly do what Section 22, Article II of the Ohio Constitution prohibits it from doing directly. See Taylor v. Ross Cty. Commrs. (1872), 23 Ohio St. 22, 34. {¶ 44} Therefore, despite the fact that former R.C. 183.08(A) directed that
the endowment fund was to “be in the cust ody of the treasurer of state but shall not be a part of the state treasury, ” any unexpended funds the legislature appropriated into the endowme nt fund should have revert ed to the treasury after two years. And in light of Section 22, Article II of the Constitution, once funds are deposited into the state treasury, they cannot be used to cr eate an irrevocable public trust. {¶ 45} If the General Assemb ly intended to free th e settlement funds from the dictates of Section 22, Article II of the Ohio Constitution, it had to place the MSA funds directly into a custodial account under R.C. 113.05(B), or the treasurer of state’s contingent fund, created in R.C. 113.10, instead of first depositing the funds into the state treasur y. Clearly the General Assembly knew
how to create a custodial account — it used specific language to do so in formerS UPREME C OURT OF O HIO

18 R.C. 183.08. See, e.g., R.C. 148.02, 149.305, and 3334.11. Just as clearly, the language in former R.C. 183.02 merely di recting that all payments received under the MSA be “deposited into the state treas ury to the credit of” a specific fund does

not create a cu stodial account. {¶ 46} Because the funds appropriated to the endowment fund were not placed in an irrevocable public trust, the General Assembly was free to reappropriate the money to any fund it desired. Far from being unconstitutional, 2008 Am.Sub.S.B. No. 192 and 2008 Sub.H.B. No. 544 are consistent with the
constitutional mandate of Section 22, Article II of the Constitution. {¶ 47} I agree with the analysis of the majority opinion on the other constitutional issues raised by this appeal.

__________________ Zeiger, Tigges & Little, L.L.P., John W. Zeiger, and Stuart G. Parsell, for appellants Robert G. M iller Jr., David W. Weinmann, and American Legacy
Foundation. Richard Cordray, Attorney General, Alexandra T. Schimmer, Chief Deputy Solicitor General, a nd Richard N. Coglianese, Michael J. Schuler, Damian Sikora, Aaron D. Epstein, and Katherine J. Bockbrader, Assistant Attorneys General, for appellees state of Ohio, Attorney General Richard Cordray, Treasurer Kevin L. Boyce, and the Ohio Department of Health and its director, Alvin D.
Jackson. Mac Murray, Petersen & Shuster and Helen Mac Murray, urging reversal for amici curiae former Attorney General Betty D. Montgomery, former Senate President Richard H. Finan, and former Dir ector of Ohio Department of Health J. Nick Baird, M.D. James E. Arnold & Associates, L.P.A ., James E. Arnold, and R. Gregory Smith, urging reversal for amici curiae Academy of Medicine of Cleveland andJanuary Term, 2010

19 Northern Ohio, American Heart Association Great Rivers Affiliate, American Lung Association, American Cancer So ciety Cancer Action Network, Campaign for Tobacco-Free Kids, Ohio State Me dical Association, American Heart Association, American Lung Association of the Midland States , American Cancer Society Ohio Division, Association of Oh io Health Commissioners, Ohio Public Health Association, and Amer ican Medical Association. Law Offices of Russell A. Kelm, Russell A. Kelm, and Joanne W. Detrick, urging reversal for amicus curiae Citizens' Commission to Protect the Truth. Bricker & Eckler, L.L.P., Anne Ma rie Sferra, and Daniel C. Gibson, urging affirmance for amici curiae Ohio Dental Association, Ohio Optometric Association, Ohio State Chiropractic A ssociation, and Ohio Association of Community Health Centers. Richard Cordray, Attorney General, and Jeannine R. Lesperance, Assistant Attorney General, urging affirmance for amici curiae President of the Ohio Senate Bill Harris and Speaker of the Ohio H ouse of Representatives Armond Budish. Squire, Sanders & Dempsey, L.L.P., Pierre H. Bergeron, and Thomas D. Amrine, urging affirmance for amicus curiae National Conference of State Legislatures. Peck, Shaffer & Williams, L.L.P., Thomas A. Luebbers, and Erin A. Sutton, urging affirmance for amici curi ae County Commissioners Association of Ohio, Ohio Job and Family Service Di rectors Association, Public Children Services Association of Ohio, and Oh io Child Support Enforcement Agency
Directors Association. Weston Hurd, L.L.P., and Daniel A. Richards, urging affirmance for
amicus curiae Voices of Ohio Children.

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