Village of Monroeville v. Ward

• Decision Date: 31 December 1969
• Citation: 50 O.O.2d 16,21 Ohio App.2d 17,254 N.E.2d 375
• Parties: , 50 O.O.2d 16 VILLAGE OF MONROEVILLE, Appellee, v. WARD, Appellant. (Two cases.)
• Court: Ohio Court of Appeals

Page 17

21 Ohio App.2d 17

254 N.E.2d 375, 50 O.O.2d 16

VILLAGE OF MONROEVILLE, Appellee, v. WARD, Appellant. (Two cases.)

Court of Appeals of Ohio, Sixth District, Huron County.

Dec. 31, 1969.

Syllabus by the Court

1. The May 7, 1968, constitutional amendments of Article IV, when construed in pari materia, do not repeal by implication statutes providing for an appeal from a mayor's court to the Court of Common Pleas.

2. The union of judicial functions and executive power in a village mayor, where the mayor receives no part of the court costs, is not a violation of due process.

Berkman, Gordon & Kancelbaum and Niki Z. Schwartz, Cleveland, for appellant.

Franklin D. Eckstein, Willard, for appellee.

POTTER, Judge.

These are appeals on questions of law from the Huron County Common Pleas Court wherein convictions in the mayor's court of Monroeville were sustained. Defendant, Clarence Ward, was charged with violating Sections 2 and 29, Ordinance 47-12 of the village of Monroeville, in that he failed to comply with a lawful order of a police officer and failed to produce a driver's license on request of the police officer. Defendant moved to dismiss the charges or in the alternative to certify the cases to a proper court on the ground that the mayor before whom the cause was to be tried in Monroeville could not sit as a disinterested and impartial tribunal.

During the oral argument before this Court of Appeals, the court inquired whether the amendment of Section 4(B), Article IV of the Ohio Constitution, adopted on May 7, 1968, as part of the 'Modern Courts Amendment,' deprived the General Assembly of power to confer appellate jurisdiction on the Common Pleas Court to review the judgment of the major's court. The parties cannot confer, by consent, jurisdiction on the Common Pleas Court or this court, and an appellate court must take notice of its own want of jurisdiction. 14 Ohio Jurisprudence 2d 542, Courts, Section 127; 4 American Jurisprudence 2d 539, Appeal and Error, Section 9; 20 American Jurisprudence 2d 455, 459, Courts, Sections 95 and 99. To the court's question, scholarly supplemental briefs have been filed by counsel.

Section 4(B), Article IV, as amended, is set forth below:

'(B) the courts of common pleas shall have such original jurisdiction over all justiciable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law.'

The section prior to amendment read as follows:

'The injurisdiction of the courts of common pleas, and of the Judges thereof shall be fixed by law.'

The section prior to amendment read as follows:

'The jurisdiction of the Courts of Common Pleas, and of the Judges thereof shall be fixed by law.'

The case of Stone v. Goolsby (Common Pleas, Franklin County, 1969), 18 Ohio Misc. 105, 245 N.E.2d 742, is to the effect that the amendment of Division (B) of Section 4, Article IV of the Ohio Constitution confers jurisdiction upon the Courts of Common Pleas to review proceedings of administrative officers and agencies, but the section makes no provision for the conferring of jurisdiction upon Courts of Common Pleas to review proceedings of Municipal Courts. It held that jurisdiction to review judgments of courts of record inferior to Courts of Appeals, including Municipal Courts, is vested by the Constitution solely in the Courts of Appeals. This conclusion was reached by the application of the doctrine of expressio unius est exclusio alterius. That court stated that it was not unmindful of the principle that the Ohio Constitution, in general, constitutes a limitation of the power of the General Assembly rather than a delegation of power to it. However, it held that Article IV of the Ohio Constitution, as amended, specifically deals with the manner in which the judicial power of the state shall be distributed and exercised and now constitutes a limitation upon the general legislative power conferred upon the General Assembly by Section 1, Article II of the Ohio Constitution. It held that since May 7, 1968, that part of Section 1901.30(A), Revised Code, which grants an option to appeal from the Municipal Court to the Common Pleas Court is in conflict with Division (B) of Section 4, Article IV of the Ohio Constitution, and is, therefore, void. The logical extension of the reasoning in the State case, supra, would be to deny all appeals from Municipal Courts, police courts, County Courts and mayors' courts to the Common Pleas Courts. See Sections 1901.30, 1905.22, 1921.01, 2305.01, and 2953.02, Revised Code; and also Sections 1923.12 (Forcible Entry and Detainer) and 2933.06 (Complaint to Keep the Peace), Revised Code.

Both the plaintiff and the defendant in the Monroeville case came to the conclusion that Stone v. Goolsby, 18 Ohio Misc. 105, 245 N.E.2d 742, is not good law. The defendant lists three reasons supporting his right to appeal to the Common Pleas Court: (1) Section 4(B), Article IV, was not adopted by the electorate on May 7, 1968; (2) 'Article IV, Section 4(B) of the Ohio Constitution violates appellant's rights to equal protection of the laws and due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and is therefore void'; and (3) 'Article IV, Section 4(B) need not be construed to deprive the General Assembly of power to confer appellate jurisdiction upon the Common Pleas Court.'

The language of the condensed text of the 'Modern Courts Amendment,' which appeared on the ballot on May 7, 1968, is as follows:

'Shall the Constitution of the state of Ohio be amended by amending Sections 1 and 2, enacting Sections 3, 4, 5 and 6 and repealing existing Sections 3, 4, 6, 7, 8, 10, 12 and 14 of Article IV and by repealing Sections 12 and 13 of Article XI as adopted in 1851 to provide that the Supreme Court shall decide all cases by majority vote, to fix the power of the Supreme Court of Ohio to exercise administrative supervision over all courts and to make rules of practice and procedure, to prohibit the election or appointment to any judicial office of a person who shall have passed the age of 70 years, to equalize judges' salaries and to allow increases in compensation during term, to remove the Probate Court as a constitutional court and to authorize the consolidation of county Probate Courts and Courts of Common Pleas?'

Defendant argues in support of reason number (1) that the ballot summary failed to give the voters information as to the alleged changes affecting the right of appeal from inferior courts to the Common Pleas Courts and, therefore, cannot be said to have been adopted by the electorate. City of Euclid v. Heaton (1968), 15 Ohio St.2d 65, 238 N.E.2d 790.

A review of the legislative history of the Act would indicate that originally all courts were to be combined in a single Common Pleas Court. Opponents of the unified Common Pleas Court plan succeeded in eliminating this feature from the 'Modern Courts Amendment.' However, Section 4(B), Article IV, was not redrafted. Defendant alleges that this inadvertence was corrected, however, by the fact that the unintended consequences thereof were not presented to the voters and, hence, not adopted.

In support of the second reason defendant argues that if Stone v. Goolsby, 18 Ohio Misc. 105, 245 N.E.2d 742, is correct, then there is no right of appeal from the decision of the mayor's court to any court. This is the holding in Village of Commercial Point v. Branson, 20 Ohio Misc. 66, 251 N.E.2d 705, and Greenhills v. Miller, 20 Ohio App.2d 313, 253 N.E.2d 311, both of which were reported after the submission of this case. Defendant contends that to deny a right of appeal from the mayor's court would be a violation of the equal protection clause of the Fourteenth Amendment. Parties convicted of similar offenses, i. e., in a Municipal Court, could appeal, whereas there could be no appeal from such a conviction in a mayor's court. It is suggested that there is a greater need to provide for an appeal from a mayor's court than from a County or Municipal Court.

The third reason of defendant's triad is that Section 4(B), Article IV, need not be construed to deprive the General Assembly of power to confer appellate jurisdiction upon the Common Pleas Court. Defendant contends the following: (1), the state Constitution, unlike the federal Constitution, is a limitation of power rather than a grant of power and (2) plenary legislative power is vested in the General Assembly by Section 1, Article II of the Ohio Constitution; thus, even though Section 4(B), Article IV, does not grant power to the general Assembly to vest appellate jurisdiction in the Common Pleas Court, this power may be derived from Section 1, Article II. Plaintiff joins defendant in this argument, and both counsel stressed the remedial effect of Section 1, Article II of the Ohio Constitution. Reliance by both is placed on the recent case of State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County (1967), 9 Ohio St.2d 159, 224 N.E.2d 906. The Jackman case involved an application by defendants through their attorneys for a commission to take depositions of certain witnesses. The trial judge announced his intention to grant the application. Thereafter, five of the named witnesses filed an action in prohibition in the Court of Appeals seeking a writ to prohibit the trial judge from entering the above order in the journal. The Court of Appeals issued the writ, holding that amended Section 2945.50, Revised Code, which authorized the trial judge's intended action, violated Section 10, Article I of the Ohio Constitution, and also constituted an unlawful delegation of legislative powers to the trial court. The court, in 9 Ohio St.2d 159, 224 N.E.2d 906, overruled the appeals court and made some observations which we think are pertinent to this case and are hereinafter referred to.

In reference to point number (1), the ballot summary, there is no...