State v. Price

• Decision Date: 27 January 1920
• Docket Number: 16432
• Citation: 128 N.E. 173,101 Ohio St. 50
• Parties: The State, Ex Rel. Doerfler, Prosecuting Attorney, v. Price, Attorney General.
• Court: Ohio Supreme Court

128 N.E. 173

101 Ohio St. 50

The State, Ex Rel. Doerfler, Prosecuting Attorney, v. Price, Attorney General.

No. 16432

Supreme Court of Ohio

January 27, 1920

Constitutional lab - Executive and judicial functions - Grand jury prosecuting attorney and attorney general - Section 13560 General Code (108 O. L., 158) - Special grand juries - Duties of attorney general - Section J, Article III, Constitution - State, county and municipal functions - Prosecution of crime - Exercise of state police power.

1. The grand jury in its inquest of crimes and offenses, and in its finding and presentation of indictments to the court of common pleas, does not exercise a judicial function. It only acts as the formal and constitutional accuser of crime and those it believes to be probably guilty thereof.

2. Neither the attorney general nor the prosecuting attorney in connection with his official services relating to the grand jury exercises any judicial function under the present statutes of the state of Ohio, especially Section 13560 General Code, as amended in 1919.

3. The Constitution of Ohio, especially Section 1 of Article III makes the attorney general one of the executive officers of the state of Ohio. In the exercise of the police power of the state, the general assembly of Ohio may delegate to him any such legal, administrative or executive duties as it deems best and which are not otherwise delegated by the constitution.

4. An act of the general assembly authorizing the court of common pleas, upon written request of the attorney general, to order a special grand jury, as provided in said Section 13566, General Code, is a valid and constitutional exercise of the police power.

5. The prosecution of crimes and offenses for the violation of the criminal laws of the state of Ohio is a state function and not a county or municipal function. It calls for the exercise of the state police power, in which county officers have only such powers as may be delegated to them by the general assembly.

6. The several counties of ohio, as political subdivisions of she state, may be called upon by the general assembly of Ohio to aid any of the executive officers of the state, in any manner that the general assembly shall deem best, in the exercise of the police powers of the state, particularly in the investigation and prosecution of crimes and offenses.

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The facts are stated in the opinion.

Mr. Samuel Doerfler, prosecuting attorney, for relator.

Mr. John A. Cline, amicus curiae.

Mr. John G. Price, attorney general, and Mr. B. W. Gearheart, special counsel, for respondent.

WANAMAKER J.

This is an original action in quo warranto brought in this court by plaintiff against John G. Price, as attorney general.

Plaintiff contends the power sought to be vested in the attorney general of Ohio by virtue of Section 13560, General Code, as amended 108 Ohio Laws, (part 1), 158, is in violation of certain provisions of the Constitution of Ohio.

Section 1 of that act reads:

"The prosecuting attorney or assistant prosecuting attorney, except as hereinafter provided, shall be * * * authorized at all times to appear before the grand jury for the purpose of giving information relative to a matter cognizable by it or advise upon a legal matter when required. Such attorney may interrogate witnesses before such jury when it or he deems it necessary, but no other person shall be permitted to remain in the room with the jury while the jurors are expressing their views or giving their votes on a matter before them. In * * * matters or cases which the attorney general is required to investigate or prosecute by the governor or general assembly, he * * * shall have and exercise any or all the rights, privileges and powers conferred by * * * law upon prosecuting attorneys, and any assistants or special counsel designated by him for that purpose shall have full power and authority to act for and on behalf of the attorney general in any matter or case in which he is authorized to act, and any stenographer designated by him for that purpose shall have the same privileges and authority in relation to the proceedings conducted by him as are provided in case of the official stenographer of the county acting at the request of the prosecuting attorney and shall make disclosure of testimony taken or heard only to such grand jury or the attorney general and such assistants and special counsel, and all proceedings in relation to such matters or cases shall be under the exclusive Supervision and control of the attorney general; and for the purpose of any investigation or prosecution conducted by the attorney general pursuant to direction by the governor or general assembly, the court of common pleas of any county or a judge thereof, on written request of the attorney general, shall order the sheriff to call together a special grand jury from the bystanders or neighboring citizens of fifteen good and lawful men having the qualifications of grand jurors, who shall be returned and sworn, and shall proceed in the manner provided by the laws relating to grand juries. Such special grand jury may be called and discharge its duties either before, during or after any session of the regular grand jury, and its proceedings shall be independent of the proceedings of the regular grand jury, but Of the same force and effect."

Plaintiff claims that that section violates the Constitution of Ohio in the three following respects:

1st: Said statute is in violation of Sections 1 and 2 of Article X of the Constitution of Ohio.

2d: Said statute permits the Contemporaneous sittings of two grand juries in the same county, which are entirely independent of each other and whose official actions may nullify-each other, all of which under the constitution-is violative of the public policy pertaining to grand juries.

3d: That said statute attempts to confer judicial power upon the attorney general of Ohio, in that it vests him with discretion to decide when a special grand jury shall be called.

In order that a statute shall fall because it is in conflict with the constitution, it is necessary that conflict shall be so clear and irreconcilable that both constitution and statute cannOt operate at the same time and upon the same subject-matter.

It has been further repeatedly held that the word "clear," as herein used, must be "beyond a reasonable doubt;" that if any doubt exists as to whether or not the statute is irreconcilably in conflict such doubt is to be resolved in favor of the validity of the statute.

With these fundamental rules in mind, let us examine the specific contentions of the plaintiff. The only reference in the Constitution of Ohio to grand juries is in Section 10, Article I of the Bill of Rights, which, so far as pertinent here, reads as follows:

"No person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law."

This constitutional provision, at the time of its adoption, assumed the grand jury to be an existing institution in Ohio; or, in short, recognized the grand jury as it existed at common law. It is unnecessary to trace the earliest history of the grand jury further than to say that it has existed under the common law for centuries, and, while originally it was a body not only of accusers but of tryers, for centuries at least it has acted only in the former capacity. Its adoption in this country both in federal and state jurisdictions has no doubt been upon the theory that it was one of the most substantial and serviceable guarantees against official tyranny, malicious prosecution, and ill-advised and expensive trials, which might generally be avoided if the formal accusation of crime were first made by one's peers, as represented by the grand jury. One's individual rights are those safeguarded against private malice, party passion or governmental abuse. The standard oath of the grand jury is almost as old as the institution itself. It is aptly expressed in the Ohio statute, Section 13556, General Code:

"When the foreman is appointed, an oath shall be administered to him in the following words 'Saving yourself and fellow jurors, you, as foreman of this grand inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service; the counsel of the state, your own...