Stone v. Goolsby

• Decision Date: 13 March 1969
• Docket Number: No. 234614,234614
• Citation: 47 O.O.2d 206,18 Ohio Misc. 105,245 N.E.2d 742
• Parties: , 47 O.O.2d 206 Donald F. STONE, Sr., et al., Plaintiffs-Appellants, v. Larry Junior GOOLSBY et al., Defendants-Appellees.
• Court: Ohio Court of Common Pleas

Page 105

18 Ohio Misc. 105

245 N.E.2d 742, 47 O.O.2d 206

Donald F. STONE, Sr., et al., Plaintiffs-Appellants, v. Larry Junior GOOLSBY et al., Defendants-Appellees.

No. 234614.

Court of Common Pleas of Ohio, Franklin County.

March 13, 1969.

[245 N.E.2d 743] Arthur G. Wesner, Columbus, for plaintiffs.

Reed M. Winegardner, Washington C. H., for defendants.

DECISION

WHITESIDE, Judge.

This is an appeal from a judgment for defendants, rendered by the Franklin County Municipal Court on July 18, 1968. The notice of appeal was filed in that Court on August 5, 1968, and with the Clerk of this Court on August 9, 1968.

This raises the question of jurisdiction of this Court to hear this appeal which must be considered sua sponte by this Court. Section 1901.30, Revised Code, provides 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, 2945.65 to 2945.70, * * * inclusive, of the Revised Code.'

Prior to May 7, 1968, Article IV, Section 4, Ohio Constitution, provided as follows:

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

Thus, there was no question of the power of the General Assembly to confer jurisdiction upon the courts of common pleas to hear appeals from a municipal court. Article IV, Section 4, Ohio Constitution, was, however, amended by a vote of the electorate at the primary election held May 7, 1968. The jurisdiction of the courts of common pleas was set forth in paragraph (B) of said section, which reads as follows:

'(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.'

This amended Article IV, Section 4, Ohio Constitution, took effect May 7, 1968, and thus was in effect upon both the date of the judgment of the Franklin County Municipal Court and of the filing of the notice of appeal. City of Edclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790.

Thus, by the language of Article IV, Section 4, Ohio Constitution courts of common pleas may by law be conferred jurisdiction to review proceedings of administrative officers and agencies but that section makes no provision for the conferring of jurisdiction upon courts of common pleas to review proceedings of municipal courts. On the other hand, Amended Article IV, Section 3, Ohio Constitution, also effective May 7, 1968, provided in paragraph (B)(2) as follows with respect to jurisdiction of courts of appeals:

'(2) Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district and shall have such appellate jurisdiction as may be provided by law to review and affirm, modify or reverse final orders on actions of administrative officers of agencies.'

It would appear to be the intent of the constitutional amendment adopted May 7, 1968, that jurisdiction to review judgments of courts of record inferior to courts of appeals, including municipal courts, be vested by law in courts of appeals but not in courts of common pleas. This conclusion is compelled by application of the doctrine of expressio unius est exclusio alterius which applies to constitutional provisions. 10 Ohio Jur.2d 141 (Constitutional Law Sec. 41); Board of Elections for Franklin County v. State, ex rel. Schneider, 128 Ohio St. 273, 191 N.E. 115, 97 A.L.R. 1417; State ex rel Giovanello v. Village of Lowellville, et al., 139 Ohio St. 219, 39 N.E.2d 527. The expression of jurisdiction in the Courts of Common Pleas to review proceedings of administrative officers and agencies coupled with the expression that Courts of Appeals may be given jurisdiction to review judgments of courts of record inferior to it, excludes the conferring by law of additional appellate jurisdiction upon Courts of Common Pleas.

In reaching this conclusion, the Court is not unmindful of the principle that the Constitution in general constitutes a limitation of the power of the General Assemply rather than a delegation of power to it. However, Article IV, Ohio Constitution specifically dealing with the manner in which the judicial power of the State shall be distributed and exercised constitutes a limitation upon the general legislative power conferred upon the General Assembly by Article II, Section 1, Ohio Constitution. See Thompson v. Redington, et al., 92 Ohio St. 101, 110 N.E. 652; State v. Mansfield, 89 Ohio St. 20, 104 N.E. 1001; Green v. Acaccia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211. State of Ohio v. Dodge, 10 Ohio App.2d 92, 226 N.E.2d 156, affirmed, 15 Ohio St.2d 65, 238 N.E.2d 790. Thus, the General Assembly is without power to enlarge the jurisdiction of the Courts of Common Pleas beyond those limits fixed by Article IV, Section 4, Ohio Constitution. The 'schedule' contained in the resultion submitting the constitutional amendment to a vote of the electorate includes the following provision:

'(A) Provision shall be made by law for the disposition of all pending cases in accordance with the procedural law in effect at the time of the effective...