City of Toledo v. Crews

• Decision Date: 22 January 1962
• Citation: 192 N.E.2d 236,117 Ohio App. 247
• Parties: , 24 O.O.2d 51 CITY OF TOLEDO, Appellant, v. CREWS, Appellee. *
• Court: Ohio Court of Appeals

Page 247

117 Ohio App. 247

192 N.E.2d 236, 24 O.O.2d 51

CITY OF TOLEDO, Appellant, v. CREWS, Appellee. ^*

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

Jan. 22, 1962.

Louis R. Young, director of law, and Lewis W. Combest, Toledo, for appellant.

Max Britz, Toledo, for appellee.

FESS, Judge.

The city of Toledo seeks to invoke the jurisdiction of this court to review a judgment of the Municipal Court of Toledo sustaining a demurrer to an affidavit charging the defendant with driving under the influence of intoxicating liquor, on the ground that the ordinance, pursuant to which the charge is brought, is in conflict with a state statute and unconstitutional, dismissing the affidavit, and discharging the defendant.

The judgment was entered June 20, 1961, and the city filed its notice of appeal therefrom on July 11, 1961--twenty-one days after the entry of the judgment. Upon the assumption that the notice of appeal was not timely filed as a matter of right, on July 11, 1961, the city also moved this court for leave to appeal on questions of law from that judgment, to which the defendant objects.

Section 1901.30, Revised Code, provides in part as follows:

'Appeals from the municipal court may be taken as follows:

'(A) Such appeals may be taken either to the court of common pleas or to the court of appeals in accordance with sections 2505.01 to 2505.39, inclusive [civil cases], and 2953.02 to 2953.14, inclusive [Criminal cases], of the Revised Code.'

Section 2953.05, Revised Code, as amended (128 Ohio Laws, 141, 143), effective January 1, 1960, provides:

'Appeal under section 2953.04 of the Revised Code, may be filed as a matter of right within thirty days after judgment and sentence or from an order overruling a motion for a new trial or an order placing the defendant on probation and suspending the imposition of sentence in felony cases, whichever is the latter. Appeals from judgments or final orders as above defined in magistrate courts shall be taken within ten days of such judgment or final order. After the expiration of the thirty day period or ten day period as above provided, such appeal may be taken only by leave of the court to which the appeal is taken. An appeal may be taken to the supreme court by giving notice as provided by law and rule of such court within thirty days from the journalization of a judgment or final order of the court of appeals in all cases as provided by law.'

Section 2931.01, Revised Code, as amended (127 Ohio Laws, 1039, 1096), effective January 1, 1958, provides, in part:

'As used in Chapters 2931. to 2953., inclusive, of the Revised Code:

'(A) 'Magistrate' includes county court judges, police judges or justices, mayors of municipal corporation[s], and judges of other courts inferior to the court of common pleas.'

Therefore, since a Municipal Court is inferior to the Court of Common Pleas, appeals in criminal cases must be taken from a Municipal Court within ten days, and not within thirty days as was formerly provided in Section 2953.05, Revised Code, prior to its amendment.

Having failed to file notice of appeal within ten days, is this court clothed with jurisdiction to entertain and grant the application of the municipality, filed within thirty days after the judgment, for leave to file an appeal?

In City of Toledo v. Kohlhofer (1954), 96 Ohio App. 355, 122 N.E.2d 20, the writer of this opinion, without engaging in any research other than looking at the provisions of Section 1901.30, decided that the Court of Appeals has jurisdiction to review a judgment of a Municipal Court in a criminal case adverse to the municipality upon an appeal taken therefrom by such municipality. Since the rendition of that decision, we have had occasion to engage in more or less extensive research of the jurisdiction of the Courts of Appeals in general and particularly with regard to their jurisdiction to entertain appeals taken by the state or a municipality from adverse judgments in criminal cases. ¹

A.

PRE-1912 JURISDICTION.

Section 2 of Article III of the Constitution of 1802 provided:

'The supreme court shall consist of three judges, any two of whom shall be a quorum. They shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law; * * *.'

Section 2 of Article IV of the Constitution of 1851 provided, in part:

'* * * It [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law. * * *

Section 5 of Article IV of the Constitution of 1851 provided for District Courts composed of Common Pleas judges, and Section 6 provided:

'The district court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.'

The first sentence of Section 6, as amended October 9, 1883, provided:

'The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.'

Prior to 1912, the jurisdiction of the Circuit Courts was not derived from the Constitution but was provided by statute, and the Revised Statutes provided in general terms for appeals without expressly conferring upon the state the right to appeal from judgments in criminal cases even from judgments of intermediate appellate courts.

The weight of authority in this country is against the right of the government to bring error in a criminal case unless specifically permitted by law, and this rule was recognized in Ohio prior to 1912. In State v. Josephs (1885), 43 Ohio St. 457, 3 N.E. 372, Section 7356, Revised Statutes, provided that in any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, a judgment of a court of officer inferior to the Court of Common Pleas might be reviewed in the Court of Common Pleas; a judgment of any court inferior to the District Court might be reviewed in the District Court; and the judgment of any court inferior to the Supreme Court might be reviewed in the Supreme Court. The court, per curiam, held that such section did not authorize the Supreme Court to review a judgment of the Circuit Court reversing a judgment of conviction rendered in the Common Pleas Court in a criminal case.

In State v. Simmons (1892), 49 Ohio St. 305, 31 N.E. 34, the court held that where a demurrer to an indictment was sustained, and the defendant discharged by the Common Pleas Court, the Circuit Court, under Section 7356, Revised Statutes, had no jurisdiction, on a petition in error filed in behalf of the state, to review the action of the trial court in sustaining the demurrer. At the time of that decision the statute stated: '* * * a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor.' (Italics supplied.) The court referred to this clause as indicating the right of the accused to appeal from a conviction, but that no right of appeal by the state was accorded. The court also mentioned Section 7305, Revised Statutes, giving the prosecuting attorney the right to present a bill of exceptions for an academic determination by the Supreme Court, as an indication that no right of appeal, as such, was accorded the prosecution.

In State v. Hance (1904), 4 Ohio Cir.Ct.R.,N.S., R.,N.S., 541, 16 Ohio Cir.Dec., 273, the Circuit Court held that the Circuit Court had no jurisdiction to hear a petition in error filed by the state in a criminal case to reverse the judgment of a Common Pleas Court discharging the accused, upon authority of the Simmons case and State v. Bour, 10 Ohio Cir.Ct.R. 58, 4 Ohio Cir. Dec. 4.

B. JURISDICTION OF THE COURTS OF APPEALS BETWEEN 1912 AND 1945

By the 1912 amendment of Section 6 of Article IV of the Constitution, the right of the General Assembly to determine the jurisdiction of the Circuit Courts was eliminated and in lieu thereof the jurisdiction was fixed (except with respect to administrative officers) and was derived directly from the Constitution itself.

With regard to the jurisdiction of the Supreme Court, Section 2 of Article IV provided:

'* * * It [the suprme court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in all cases involving questions arising under the constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the courts of appeals, and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law. * * *' ²

With regard to the jurisdiction of the Courts of Appeals, Section 6 of Article IV provided:

'* * * The courts of appeals shall have original jurisdiction in [same as Supreme Court] * * * and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, * * *.' ³

Under the old Constitution, the jurisdiction of the appellate courts rested in the discretion of the General Assembly, but under the 1912 amendment this was changed by removing the power generally from the Legislature to the Constitution itself. Mahoning Valley R. Co. v. Santoro, Admr., 93 Ohio St. 53, 112 N.E. 190. And the Legislature had no power to enlarge or limit the jurisdiction as fixed by the 1912 amendments, but it might provide by law the method of exercising it. 2 Ohio Jurisprudence (2d), 560, Section 6.

Between 1912 and 1945, it was consistently and repeatedly held that the Court of Appeals acquired its jurisdiction directly and solely from Section 6 of Article IV and that there was no legislative authority to enlarge that jurisdiction. See Hoffman v. Knollman (1939), 135 Ohio St. 170, 20 N.E.2d 221, citing eighteen cases...