Schario v. State

• Decision Date: 05 July 1922
• Docket Number: 17409
• Parties: Schario v. The State Of Ohio
• Court: Ohio Supreme Court

138 N.E. 63

105 Ohio St. 535

Schario v. The State Of Ohio

No. 17409

Supreme Court of Ohio

July 5, 1922

Constitutional and statutory construction - Meaning of words and phrases - Proceedings in error - Prescribing time for hearing case - Intoxicating liquor - Section 6212-13 et seq., General Code - Final determination of case not required, when - Constitutional law - Legislative invasion of judicial power.

1. The language of the law, constitutional or statutory, should be given the ordinary and usual meaning of the words and phrases employed.

2. Sections 6212-13 to 6212-20, General Code (108 O. L., pt. 2 1182), providing among other things that "The case shall be heard by such reviewing court within not more than thirty court days after filing such petition in error," does not include within Its terms the final consideration determination, and judgment upon such petition in error, and the record therein.

3. So much of such act (Section 6212-20, General code) as reads "A petition in error * * * filed in any court to reverse a conviction for a violation of this act, or to reverse a judgment affirming such conviction * * * shall be heard by such reviewing court within not more than thirty court days after filing such petition in error" is a clear invasion of the jurisdiction of the court of appeals and the supreme court, as fixed by the constitution, and therefore, being in conflict with the constitution, is null and void.

4. An act of the general assembly attempting to peremptorily prescribe the time within which any court In the exercise of its judicial function shall hear or determine a matter properly within Its jurisdiction is a legislative Invasion of judicial power, and, as such, is unreasonable and unconstitutional, and therefore null and void.

Schario was found guilty of violating the Crabbe Act by the criminal court of the city of Canton, Ohio. Error was prosecuted in the common pleas court of Stark county, in which a petition in error was filed within thirty days after such judgment.

More than thirty days after the filing of the petition in error, a motion was filed by the defendant in error to dismiss the action for the reason that more than thirty court days had passed since the filing of the petition in error and the cause had not been heard by the court of common pleas.

The common pleas court sustained the motion, holding that the court was without jurisdiction to hear the cause after the lapse of thirty court days.

Error was thereupon prosecuted to the court of appeals, which affirmed the judgment of the court of common pleas.

Error is here prosecuted to reverse the judgment of the court of appeals.

Mr Joseph M. Blake, for plaintiff in error.

Mr Thomas M. Miller, city solicitor; Mr. James A. White and Mr. Charles M. Earhart, for defendant in error.

WANAMAKER J.

The courts below base their decision upon Section 6212-20, General Code, which reads as follows:

"A petition in error shall not be filed in any court to reverse a conviction for a violation of this act [G. C. 6212-13 to 6212-20], or to reverse a judgment affirming such conviction, except after leave granted by the reviewing court. Such leave shall not be granted except for good cause shown at a bearing of which counsel for the complainant of the original case shall have had actual and reasonable notice.

Such petition in error must be filed within thirty days after the judgment complained of, and the case shall be heard by such reviewing court within not more than thirty court days after filing such petition in error. When the reviewing court is not in session within the time provided for, the motion for leave to file the petition in error and the petition in error may be filed with, and heard by, such reviewing court within ten days after it is in session."

We agree that the language of the statute is clear, and therefore permits no construction. It is as mandatory as language can make it as to the thirty-day limitation, but it is likewise clear that the thirty-day limitation applies only to the hearing, because the language is "and the cause shall be heard by such reviewing court within not more than thirty court days after filing such petition in error."

It is to be presumed that the general assembly used that language advisedly, and therefore did not include in the statute "a determination upon the petition in error and the record." Hence it is quite clear that there was nothing in the statute to pre vent the common pleas court from determining the case after the thirty days. If the statute had intended otherwise, presumably it would have read otherwise, as "and the case shall be heard and determined by such reviewing court."

The court was...