State ex rel. Stokes v. Probate Court of Cuyahoga County

CourtUnited States Court of Appeals (Ohio)
Citation17 Ohio App.2d 247,246 N.E.2d 607,46 O.O.2d 416
Parties, 46 O.O.2d 416 The STATE ex rel. STOKES, Mayor, v. PROBATE COURT OF CUYAHOGA COUNTY et al.
Decision Date07 March 1969

Squire, Sanders & Dempsey, Clarence L. James, Jr., Director of Law, and Daniel J. O'Loughlin, Cleveland, for relator.

John T. Corrigan, Pros. Atty., and Dennis J. McGuire, Cleveland, for respondents.


This case is before us as an action originating in this court for a writ of prohibition.

In accordance with the provisions of Sections 733.72 to 733.77, inclusive, Revised Code, a complaint, bearing the signatures of five electors of the city of Cleveland, was filed in the Probate Court of Cuyahoga County. The complaint makes certain allegations against the Honorable Carl B. Stokes, Mayor of the city of Cleveland, and seeks to have the Probate Court remove Mr. Stokes from his office, and alleges that he has been guilty of misfeasance and malfeasance in office.

Defendant Stokes filed a motion to quash summons, contending that the Probate Court lacked jurisdiction in the matter, under the theory that the statutes under which this removal procedure was initiated have been repealed by implication by virtue of the enactment of statutes now known as Sections 3.07 to 3.10, inclusive, Revised Code. The motion was overruled. Defendant, as relator, then filed in this court his petition seeking a writ of prohibition to prevent the Probate Court from exercising jurisdiction, again on the theory of repeal by implication of Section 733.72 et seq., Revised Code. Respondents, the Probate Court of Cuyahoga County and Judge Holland M. Gary (who sits by assignment), have filed a demurrer to that petition.

We, therefore, are not involved with the question whether the charges in the complaint filed with the Probate Court have any factual merit, or whether there is any justification for the removal prayed for. The sole question confronting us is whether Section 733.72 et seq., Revised Code, are still operative, or whether they have been repealed by implication. The answer to that question will do no more than to determine whether the Probate Court has the jurisdiction to hear evidence supporting and opposing the complaint filed therein, and to act on the basis of its findings. Counsel for both parties have agreed that this court's ruling on respondents' demurrer to the petition 'will be dispositive of the jurisdictional question raised by the petition.'

Sections 733.72 to 733.77, inclusive, Revised Code, establish a procedure for the removal of an officer of a municipal corporation. The procedure may be initiated by the filing, with the Probate Judge of the county in which the municipality is situated, of a complaint made under oath by any elector of the municipal corporation involved. Such complaint must also be signed and approved by four other electors of the municipal corporation. The complaint must set forth allegations falling within at least one of three separate classes delineated in Section 733.72, including 'misfeasance or malfeasance in office,' as alleged in the case filed in Probate Court against relator. After requiring the complaining party to furnish security for costs, the Probate Judge is required to issue a citation against the accused party. The provisions of these sections then set forth the procedure to be followed, and authorize the Probate Judge to remove the officer if the charges 'are sustained by the verdict of the jury, or by the decision of the probate judge when there is no jury.' (Section 733.76, Revised Code.)

Sections 3.07 to 3.10, inclusive, Revised Code, provide a general, all-inclusive method for removal of any public official in the state of Ohio, whether he be a state, county or municipal official. The procedure must be initiated by the filing of a complaint, signed by a number of qualified electors of the political entity involved, in the Court of Common Pleas in the county wherein the official complained of resides (except that, where the official is a Common Pleas Judge, the complaint is to be filed in the Court of Appeals). The last sentence of Section 3.07, Revised Code, reads as follows:

'The proceedings provided for in * * * (Sections 3.07 to 3.10, inclusive) are in addition to impeachment and other methods of removal authorized by law, and such sections do not divest the governor or any other authority of the jurisdiction given in removal proceedings.'

Further distinctions between the two procedures herein involved, and the histories of their enactments and amendments, are set forth and discussed below.

We must start with the presumption that, where two similar statutes exist, their coexistence was intended by the General Assembly. Once such intent is questioned, as here, the courts may inquire into the language and effect of the statutes, to see whether a conflict or logical inconsistency is apparent. Even then, however, the courts must see whether such conflict or inconsistency may be reconciled by some reasonable interpretation. Only if such reconciliation is thereby impossible, may repeal by implication be found. State, ex rel. Fleisher Engineering & Const. Co., v. State Office Bldg. Comm. (1930), 123 Ohio St. 70, 74, 174 N.E. 8; Henrich v. Hoffman, Judge (1947), 148 Ohio St. 23, 26, 72 N.E.2d 458; O'Neil v. Board of County Commissioners (1965), 3 Ohio St.2d 53, 57, 209 N.E.2d 393, and cases cited therein.

It is a general rule that repeals by implication are not favored. Where a prior enactment of a special statute is followed by a later enactment in general terms, which does not expressly contradict the provisions of the prior act, the general act will not be said to repeal the prior one, 'unless such intention is clear.' Even where two such acts have conflicting terms, 'neither necessarily abrogates the other, * * * and it is immaterial which is of the later date.' Commissioners of Muskingum County v. Board of Public Works (1884), 39 Ohio St. 628, 632.

Relator cites paragraph one of the syllabus of Western & Southern Indemnity Co. v. Chicago Title & Trust Co. (1934), 128 Ohio St. 422, 191 N.E. 462, which reads as follows:

'Where two sections of the General Code contain inconsistent provisions relating to the same subject-matter, the later enactment must prevail and the earlier is repealed by implication.'

We acknowledge the validity of that statement, but also note that paragraph three of the syllabus of the same case provides:

'A special statute covering a particular subject-matter must be read as an exception to a statute covering the same and other subjects in general terms.'

Relator contends that Section 733.72 et seq., Revised Code, having their origin at a point in time prior to the adoption of the Constitution of 1851, are repealed by implication by Section 38 of Article II thereof, under the authority of which Sections 3.07 to 3.10, Revised Code, emanated, first as Sections 10-1 to 10-4, General Code. Such an argument was rejected 116 years ago, in the case of State ex rel. Evans v. Dudley (1853), 1 Ohio St. 437, 441, wherein Judge Ranney stated that the rule, opposing repeal by implication except where there is an irreconcilable repugnancy, is equally applicable as between a constitutional provision and a legislative enactment. See, also, Mahoning Valley Ry. Co. v. Santoro (1915), 93 Ohio St. 53, 112 N.E. 190, paragraphs one and two of the syllabus.

The basis test, then, as to whether a new Constitution containing no express repeal of earlier legislation repeals by implication a pre-existing statute, depends upon one rather simple question: Is the statute one which is sufficiently consistent with the new Constitution to have been capable of passage after the new Constitution took effect? If the answer is in the affirmative, the statute cannot be said to have been repealed by implication; if in the negative, such repeal is implicit in the adoption of the new Constitution. Cass v. Dillon (1853), 2 Ohio St. 607, paragraphs three through five of the syllabus; State ex rel. City of Toledo, v. Lynch (1913), 88 Ohio St. 71, 92, 102 N.E. 670, 48 L.R.A.,N.S., 720; State v. Cameron (1914), 89 Ohio St. 214, 106 N.E. 28; paragraph two of the syllabus.

It is obvious that Section 38 of Article II of the Constitution, which section was adopted in 1912, clearly authorizes such laws as Section 733.72 et seq., Revised Code. Section 38 reads, in its entirety, as follows:

'Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution.'

Of special significance is the first word, 'Law,' which, being in the plural, clearly authorizes more than one procedure for the removal of public officers. Before proceeding to apply existing law to the situation, it would be helpful first to review the history of the enactment of the two statutes and one constitutional provision herein involved.

Sections 733.72 to 733.77, Revised Code, in their present form, were enacted in 1953. However, they are the direct descendants of an original bill passed in May 1871 (68 Ohio Laws 113-114) under the title, 'To provide for the trial and removal of municipal officers from office.' They survived intact as Sections 4670 to 4675, General Code. The wording of the statutes in their present form is, in most respects, identical to that of the original bill-so much so, in fact, that Section 733.73, as enacted in 1953, erroneously contained the word, 'complaint,' where 'complainant' was intended, even though the same error in the original bill of 1871 had been corrected when incorporated into the Revised Statutes as Section 1733 thereof. Similarly, the same...

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7 cases
  • State v. Strom, 20180167
    • United States
    • United States State Supreme Court of North Dakota
    • 15 Enero 2019
    ...statute is implicit in adoption of the new constitutional provision. See State ex rel. Stokes v. Probate Court of Cuyahoga County , 17 Ohio App. 2d 247, 246 N.E.2d 607 (1969). Here, we resolve the irreconcilable conflict between the constitutional amendment and the statute by interpreting N......
  • Urseth v. City of Dayton, C-3-84-103.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 19 Noviembre 1987
    ...prejudice. See Larrissey v. Norwalk Truck Lines, 155 Ohio St. 207, 222, 98 N.E.2d 419 (1951); State ex rel. Stokes v. Probate Court, 17 Ohio App.2d 247, 246 N.E.2d 607 (1969). Further, the Court agrees with the Plaintiff's assertion that no dispositive significance may be inferred in the re......
  • Schwartz v. Cuyahoga Cnty. Bd. of Revision, 2013–1955.
    • United States
    • United States State Supreme Court of Ohio
    • 27 Agosto 2015
    ...disfavored. See State ex rel. Evans v. Dudley, 1 Ohio St. 437, 441 (1853) ; State ex rel. Stokes v. Probate Court of Cuyahoga Cty., 17 Ohio App.2d 247, 249–250, 246 N.E.2d 607 (8th Dist.1969). To determine whether a constitutional provision implicitly repealed a statutory provision, this co......
  • Mantua ex rel. Webb v. Clavner, 91-P-2399
    • United States
    • United States Court of Appeals (Ohio)
    • 1 Julio 1993
    ...a party to this action below and has standing to bring this appeal. In State ex rel. Stokes v. Cuyahoga Cty. Probate Court (1969), 17 Ohio App.2d 247, 46 O.O.2d 416, 246 N.E.2d 607, the court rejected the contention that a complainant is denied the right to appeal under R.C. 733.72 et seq. ......
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