State Of Ohio v. Cameron
| Decision Date | 13 January 1914 |
| Docket Number | 14392 |
| Parties | State Of Ohio v. Cameron Et Al. |
| Court | Ohio Supreme Court |
Criminal law - Conflict of laws with constitutional amendments -Repeals by implication - Jurisdiction of supreme court - Bills of exceptions by attorney general or prosecuting attorney - Sections 13681 to 13684, General Code.
1. Under the general policy of our law as well as the schedule accompanying the new constitution of 1912, all statutes then in force consistent with such new constitution remain in force, and all repugnant statutes are repealed by implication.
2. Repeals by implication are not favored, and before a statute is so repealed the repugnancy must be necessary and obvious and if by any fair course of reasoning the law and constitution can be reconciled the law must stand. (Cass v Dillon, 2 Ohio St. 608, approved and followed)
3. Sections 13681 to 13684, General Code, are neither inconsistent with nor repugnant to the new constitution, and are thereby preserved in full force and virtue as to felony cases, not as conferring jurisdiction but as prescribing a rule of procedure and practice as to certain appellate jurisdiction now conferred by the new constitution.
MOTION to Dismiss Bill of Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Franklin county.
Facts are stated in opinion.
Mr Edward C. Turner, prosecuting attorney, for the exceptions.
Mr Smith W. Bennett and Mr. O. E. Harrison, against the exceptions.
Mr. James M. Butler and Mr. J..J. Chester, of counsel, appointed by the court, against the exceptions.
Isaac B. Cameron and Cyrus Huling were jointly indicted by the grand jury of Franklin county, Ohio, under favor of Revised Statutes, Section 6841, as in force in the month of May, 1903, for the unlawful conversion of public money belonging to the state of Ohio.
To this indictment the defendants demurred, and were sustained by the court of common pleas. The state thereupon excepted to such ruling and brings its exceptions to this court for a decision as to the law, under favor of Sections 13681 to 13684, inclusive, General Code.
Upon the filing of such bill of exceptions by the state of Ohio, counsel appointed by the court of common pleas to sustain its judgment upon the demurrer filed a motion to strike said bill of exceptions from the files upon the ground that the supreme court of Ohio is now without jurisdiction in the premises, claiming that, by the adoption of the new constitution, said statutes are by implication repealed.
The sole question, therefore, before this court is whether or not under the new constitution of 1912 the sections of the General Code above referred to, to-wit, 13681 to 13684, inclusive, are still in force, or, upon the contrary, have they been repealed by reason of the fact that they are repugnant to and inconsistent with the new constitution.
The schedule of the constitution of 1912 here applicable reads as follows:
It is conceded that these statutes in question have not been expressly amended or repealed, but it is claimed that they are impliedly repealed because of inconsistency with the plain provisions of the new constitutional amendment.
It is conceded upon all hands that, under the constitution of 1851, all appellate jurisdiction conferred upon the supreme court had to be conferred by an act of the general assembly of Ohio.
Article IV, Section 2, of the Constitution of 1851 reads as follows: "It shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law:"
It is likewise admitted on all hands that, under the new constitution, all appellate jurisdiction that the supreme court may exercise is conferred directly by the constitution itself. See Section 2, Article IV, as amended September 3, 1912. Of course, this does not include the revisory jurisdiction of administration boards.
And it must further be conceded that the new constitution confers on the supreme court all and absolute appellate jurisdiction in "cases of felony," and that the only qualification upon such full and complete appellate jurisdiction under the new constitution "in cases of felony" is in the language on leave first obtained."
Appellate jurisdiction under the new constitution is as comprehensive as any that the legislature might have conferred under the old constitution.
The legislature not having any authority under the new constitution to confer appellate jurisdiction, and it being contended that the statutes in question whose survival is here denied do assume to confer jurisdiction, therefore, it is vigorously contended that the legislature being without power in this behalf, its acts in this respect become at once null and void by reason of their being inconsistent with and repugnant to the present constitution; and hence that they are effectually repealed by implication.
Questions of this character frequently arose under the constitution of 1851. Judge Thurman, in the old case of Cass v. Dillon, 2 Ohio St. 607, lays down the correct rule for determining what statutes are preserved and what sections fall by reason of changes made in the state constitution. The syllabus of that case, so far as applicable here, is as follows:
Now it has been determined by this court in a recent case, 87 Ohio St. 313, State of Ohio v. Cox, that the sections in question did "confer appellate jurisdiction upon the supreme court in criminal cases to the extent and for the purposes specified in these sections." In short, therefore, the court has held in the Cox case, supra, that jurisdiction to determine merely a question of law is proper appellate jurisdiction, though the procedure is largely ex parte, and though the judgment of the supreme court in such cases cannot in any wise affect the parties below.
Now the sections in question, so far as they assume to confer appellate jurisdiction, confer a power upon this court that is already conferred by the constitution. But does that of itself make those sections inconsistent with or repugnant to the constitution according to the Judge Thurman rule?
The mere fact that an act of the general assembly covers the identical subject-matter, even in the identical way that the constitution covers it, does not render such an act of the general assembly necessarily inconsistent with or obviously repugnant to the constitution. Upon the contrary, it is absolutely consistent with and conformable to the constitution. It is fairly reconcilable there-with because in phrase and fact it attempts to do the same thing that the constitution has already done.
In short, as a legislative provision, it is a sort of duplicate of the constitutional provision. How two things that are duplicates of each other can be necessarily and obviously repugnant to each other is beyond human reason. While a statutory provision that attempts to do the same thing that a constitutional provision has theretofore done is wholly unnecessary and ineffectual, still it cannot be fairly said, therefore, to be necessarily inconsistent and obviously repugnant to and irreconcilable with the constitution.
If the statute exceeded the power conferred by the constitution, then to the degree of the excess clearly that must fall by reason of repugnance. If, however, the power conferred by the legislature be less than the power conferred by the constitution, so far as the same is conferred it is not unconstitutional, because it is in entire harmony with the constitution. The limitation, however, undertaken by the legislature would in itself fall because there is no such limitation in the constitution.
Now the only limit in the constitution, so far as applicable to this case, is the "leave" or discretion of the supreme court. The majority of the court are clearly persuaded that a wise and sound course requires of this court the continuation of the policy of this state in criminal cases ever since 1867, to review the decisions and judgments of the lower courts for the purpose of determining the questions of law involved. In cases of jeopardy, that is all that could be done. In cases where there has been no jeopardy, that is all that the state may want done.
We are all agreed that the state might have prosecuted an appeal in this case for a reversal of the judgment below, there having been no jeop- ardy of the defendants; but because they might have prosecuted error to the entire judgment, that does not necessarily deprive the state of the right to prosecute error as to a part of the judgment on a mere question of law for the purpose of...
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