Tari v. State

• Decision Date: 21 December 1927
• Docket Number: 20540
• Citation: 159 N.E. 594,117 Ohio St. 481
• Parties: Tari v. The State Of Ohio.
• Court: Ohio Supreme Court

159 N.E. 594

117 Ohio St. 481

Tari v. The State Of Ohio.

No. 20540

Supreme Court of Ohio

December 21, 1927

Judges - Disqualification by interest in pending cause -Disqualification waived unless objection made at earliest available opportunity - Disqualification deemed waived when no objection made in trial court - Interest of judge renders judgment voidable and not void - Criminal law - Violation of intoxicating liquor laws.

1. Interest of a judge in the decision of a cause pending before him disqualifies him from hearing and determining the cause.

2. Such disqualification is waived unless objection be made thereto at the earliest available opportunity, and if known to the complaining party at or before the trial and if no objection be made in the trial court, will be deemed to be waived.

3. Interest of the trial judge does not render the judgment void, but merely voidable.

The facts are stated in the opinion.

Mr. J V. Zottarelli, for plaintiff in error.

Mr Fred A. Irvine and Mr. L. A. Tucker, for defendant in error.

MARSHALL C. J.

Sam Tari was tried before John S. Rutledge, a justice of the peace in Cuyahoga county, for violation of the statutes of Ohio relating to the unlawful traffic in intoxicating liquors. He was tried upon two separate charges, viz., the unlawful possession of intoxicating liquors, and having in his possession property designed for the manufacture of liquor intended for use in violation of law. When the officers entered his apartment, they found him engaged in operating a still of 100 gallons capacity, and also found 59 barrels of mash and 5 gallons of whisky. He did not testify in his own behalf. He was found guilty of both offenses, and was assessed a fine of $800 for the unlawful possession of intoxicating liquors and one of $950 for the unlawful possession of property designed for the manufacture of liquors. Error was prosecuted to the court of common pleas, where the judgment of the justice of the peace was affirmed. Error was then prosecuted to the Court of Appeals where the case was heard on April 25, 1927, and the judgment again affirmed. Thereupon a petition in error was filed in this court as of right, claiming that a constitutional question was involved; and a motion to certify was also filed. The motion to certify was allowed.

At the trial of the case before the justice of the peace no objection was made that the justice of the peace was disqualified, or that he had any interest in the controversy or the outcome of it; nor was it claimed that any questions of due process of law were involved. No such questions were presented in the argument of the case on error in the court of common pleas. The case of Tumey v. State, 273 U.S. 510,47 S. Ct., 437, 71 L.Ed. 749, 50 A.L.R. 1243, was decided by the Supreme Court of the United States on March 7,1927, and, when this controversy came on for hearing in the Court of Appeals on April 25, 1927, counsel for Tari, for the first time urged the interest of the justice, and his disqualification, and that Tari had been denied due process of law.

In this particular case very meager briefs were filed by counsel for plaintiff in error, but the case involves the same identical questions involved in causes numbered 20506 and 20507 in this court, (State v. Allen and State v. Williams, ante, 470, 159 N. E., 591), and we have therefore examined with great care all of the briefs filed in those cases on the part of counsel of record and of counsel who have filed briefs amici curiae for the respective parties.

All of the arguments in these three cases, and other related cases considered concurrently herewith, are based upon the case of Tumey v. State, 273 U.S. 510, 47 S. Ct., 437, 71 L.Ed. 749, 50 A.L.R. 1243, decided March 7, 1927, by the Supreme Court of the United States. It is contended, on the one hand, that the controlling elements of the Tumey case are exactly parallel to the instant controversy, and that the principles decided in that case are controlling and decisive of this case. It is contended on the other hand that the essential elements of the Tumey case, and the facts out of which the decision grew, were so different that it does not authorize the reversal of this judgment.

Lest there be the slightest misapprehension upon the subject, it should be stated at the very outset of this opinion that the Tumey case interprets and applies the Fourteenth Federal Amendment to the procedure in the trial court in that case, and that we fully recognize the authority of that court to define the meaning, scope, and application of the Fourteenth Amendment, and that we further recognize the binding force of the pronouncements of that court in all questions involving due process upon all courts of all states in the Union. We respect not only the authority of that judgment, but we respect the judgment itself.

It is contended, on the one hand, that the Ohio statutes conferring jurisdiction upon magistrates in Ohio to try misdemeanor cases were unconstitutional, and that the judgments of all magistrates, where the collection of fees was dependent upon conviction, were utterly null and void. As a logical result of that view, it was further contended that those magistrates were without jurisdiction either of the subject-matter or of the person, In the attempted trial of misdemeanor cases.

It is contended, on the other hand, that the Supreme Court of the United States declared no statutes unconstitutional, and that it was only decided that magistrates having a substantial interest in the event of the trial were disqualified, and that their judgments were therefore voidable.

Having carefully read, and many times reread, the opinion in the Tumey case, we confidently and emphatically assert that we find nothing obscure, or ambiguous, or of doubtful meaning, in a single sentence of that opinion. It should be said in fairness that counsel have not pointed out any ambiguities or words or phrases of doubtful meaning, but they have sought to draw inferences from the language used which in their judgment indicate that the court meant to go very much farther than the definite expressions contained in the opinion. We are convinced that the court not only meant all that it said, but that it said all that it meant. We confidently assume that the Supreme Court of the United States had fully in mind the far-reaching consequences of its decision, and that it also had clearly in mind the well-settled limitations of that court upon its power and authority to interpret the statutes of a state, and of the equally well-settled right of a state finally to determine the jurisdiction of its courts. Having carefully studied the Tumey opinion in the light of all of the authorities cited and quoted, and all of the additional authorities cited and commented upon in the voluminous briefs of counsel, we are unable to find that that court has departed in the slightest particular from the current of the former opinions of that court defining the line of demarcation between federal and state authority. Nowhere in the United States Supreme Court reports is this line more clearly and definitely stated than in the case of Standard Oil Co. v. Missouri, 224 U.S. 270, 32 S. Ct., 406, 56 L.Ed. 760, Ann.Cas., 19131), 936. At pages 280 and 281 of the opinion of Mr. Justice Lamar (32 S. Ct., 409) we find the following:

"It is, of course, essential to the validity of any judgment that the court rendering it should have had jurisdiction, not only of the parties, but of the subject-matter. Chicago, B. & O. Ry. Co. v. Chicago, 166 U.S. 226, 234, 247 [17 S. Ct., 581, 41 L.Ed. 979]. But it is equally well settled that it is for the Supreme Court of a state finally to determine its own jurisdiction and that of other local tribunals, since the decision involves a construction of the laws oft he state by which the court was organized. In this case the Constitution of Missouri declared that `the Supreme Court shall have power to issue writs of habeas corpus, quo warranto, certiorari and other remedial writs, and to bear and determine the same.' Its decision and judgment necessarily imply that under that clause of the Constitution it had jurisdiction of the subject-matter and authority to enter judgment of ouster and fine in civil quo warranto proceedings. That ruling is conclusive upon us regardless whether the judgment is civil or criminal or both combined. Standard Oil Co. v. Tennessee, 217 U.S. 413, 420 [30 S. Ct., 543, 54 L.Ed. 817]."

Further proceeding in that opinion, Mr. Justice Lamar declares the essential principle involved:

"The federal question is whether, in that court, with such jurisdiction, the defendants were denied due process of law."

Much more appears in that opinion clearly indicating that, while a state can fix, determine, and define the jurisdiction of its courts, it is still open to the United States Supreme Court to determine whether a jurisdiction so exercised operates as a denial of due process of law. In other words, there is a clear distinction between jurisdiction and the exercise of that jurisdiction. The one is the institution, the other is the machinery by which it operates, commonly called the procedure.

The federal government is one of delegated powers, and those powers do not include the right either to prescribe the jurisdiction of the state courts or to limit or abridge or regulate their jurisdiction, as defined and prescribed by the state government. The only power of the federal government over the state courts is that conferred by the Fourteenth Amendment, whereby litigants are guaranteed that in the exercise of their jurisdiction courts shall observe the injunctions of that amendment. True, a state statute, which would definitely and in terms attempt...