Tumey v. State of Ohio, No. 527

CourtUnited States Supreme Court
Writing for the CourtTAFT
Citation71 L.Ed. 749,273 U.S. 510,50 A. L. R. 1243,47 S.Ct. 437
Docket NumberNo. 527
Decision Date07 March 1927
PartiesTUMEY v. STATE OF OHIO

273 U.S. 510
47 S.Ct. 437
71 L.Ed. 749
TUMEY

v.

STATE OF OHIO.

No. 527.
Argued Nov. 29, 30, 1926.
Decided March 7, 1927.

Page 511

Messrs. Edward P. Moulinier, James L. Magrish, and Harry H. Shafer, all of Cincinnati, Ohio, for plaintiff in error.

[Argument of Counsel from pages 511-512 intentionally omitted]

Page 513

Messrs. Wayne B. Wheeler and Edward Dunford, both of Washington, D. C., for the State of Ohio.

[Argument of Counsel from page 513 intentionally omitted]

Page 514

Mr. Chief Justice TAFT delivered the opinion of the Court.

The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the state (Gen. Code, Ohio, § 6212-13 et seq.), deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal Constitu-

Page 515

tion, because of the pecuniary and other interest which those statutes give the mayor in the result of the trial.

Tumey, the plaintiff in error hereafter to be called the defendant, was arrested and brought before Mayor Pugh, of the village of North College Hill, charged with unlawfully possessing intoxicating liquor. He moved for his dismissal because of the disqualification of the mayor to try him under the Fourteenth Amendment. The mayor denied the motion, proceeded to the trial, convicted the defendant of unlawfully possessing intoxicating liquor within Hamilton county as charged, fined him $100, and ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and carried the case on error to the court of common pleas of Hamilton county. That court heard the case and reversed the judgment, on the ground that the mayor was disqualified as claimed. 25 Ohio Nisi Prius (N. S.) 580. The state sought review by the Court of Appeals of the First Appellate District of Ohio, which reversed the common pleas and affirmed the judgment of the mayor. 23 Ohio Law Reporter, 634.

On May 4, 1926, the state Supreme Court refused defendant's application to require the Court of Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of right, asking that the judgment of the mayor's court and of the appellate court be reversed on constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed for the reason that no debatable constitutional question was involved in the cause. The judgment was then brought here upon a writ of error allowed by the Chief Justice of the state Supreme Court, to which it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262, 46 S. Ct. 108, 70 L. Ed. 266; Hetrick v. Village of Lindsey, 265 U. S. 384, 44 S. Ct. 486, 68 L. Ed. 1065. This brings us to the merits of the case.

Page 516

The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White Oak, another village in Hamilton county, Ohio, on a warrant issued by the mayor of North College Hill. The mayor acted under the sections of the state Prohibition Act and Ordinance No. 125 of the village of North College Hill adopted by pursuance thereof.

Section 6212-15, General Code, Ohio, provides that:

'No person shall, after the passage of this act * * * manufacture, * * * possess, * * * any intoxicating liquors. * * *'

Section 6212-17 provides that:

'* * * Any person who violates the provisions of this act (G. C. §§ 6212-13 to 6212-20) for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense, he shall be fined not less than five hundred dollars nor more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years. * * *'

The mayor has authority, which he exercised in this case, to order that the person sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner received a credit of 60 cents a day for each day's imprisonment. By a recent amendment, that credit has increased to $1.50 a day Sections 13716, 13717, Gen. Code Ohio.

Section 6212-18 provides, in part, that:

'Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the county with whom the affidavit is filed charging a violation of any of the provisions of this act (G. C. §§ 6212-13 to 6212-20) when the offense is alleged to have been committed in the county in which such mayor, justice of the peace, or judge

Page 517

may be sitting, shall have final jurisdiction to try such cases upon such affidavits without a jury, unless imprisonment is a part to the penalty, but error may be prosecuted to the judgment of such mayor, justice of the peace, or judge as herein provided.'

Error from the mayor's court lies to the court of common pleas of the county, and a bill of exceptions is necessary to present questions arising on the evidence. Sections 10359, 10361, General Code Ohio. The appellate review in respect to evidence is such that the judgment can only be set aside by the reviewing court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake or bias on the part of the trial court or a wilful disregard of duties. Datesh v. State, 23 Ohio Nisi Prius (N. S.) 273.

Section 6212-19, provides that:

'Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to the general revenue fund, one-half to the treasury of the township, municipality or county where the prosecution is held, according as to whether the officer hearing the case is a township, municipal, or county officer.'

Section 6212-37 provides that:

'The council of any city or village may, by ordinance, authorize the use of any part of the fines collected for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose of hiring attorneys, detectives, or secret service officers to secure the enforcement of such prohibition law. And such council are hereby authorized to appropriate not more than five hundred dollars annually from the general revenue fund, for the purpose of enforcing the law prohibiting the manufacture and sale of intoxicating liquors, when there are no funds available from the fines collected for the violation of such prohibitory law.' 109 Ohio Laws, p. 9, § 17.

Under the authority of the last section, the village council of North College Hill passed Ordinance No. 125, as follows:

Page 518

'An ordinance to provide for compensation to be paid from the secret service funds of the village of North College Hill, Hamilton county, Ohio, created by authority of section 6212-37, of the General Code of Ohio, to detectives, secret service officers, deputy marshals' and attorneys' fees, costs, etc., for services in securing evidence necessary to conviction and prosecuting violation of the law of the state of Ohio prohibiting the liquor traffic.

'Be it ordained by the council of the village of North College Hill, Hamilton county, Ohio:

'Section I. That fifty per cent. of all moneys hereafter paid into the treasury to said village of North College Hill, Ohio, that is one-half of the share of all fines collected and paid into and belonging to said village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio, prohibiting the liquor traffic, shall constitute a separate fund to be called the secret service fund to be used for the purpose of securing the enforcement of any prohibition law.

'Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation for their services in securing the evidence necessary to secure the conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine collected, and other fees allowed by law.

'Section III. That the attorney at law of record prosecuting persons charged with violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount equal to 10 per cent. of the fine collected, in all cases, whether the plea be guilty or not guilty.

'Section IV. That detectives and secret service officers shall receive as compensation for their services in securing the evidence necessary to secure the conviction of

Page 519

persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine collected.

'Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases.

'Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the immediate preservation of the public peace and safety, made necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from and after this passage.'

The duties of the mayor of a village in Ohio are primarily executive. Section 4248 of the General Code of Ohio provides as follows:

'Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer, marshal, street commissioner, and such other officers and departments thereof as are created by law.

'Section 4255. * * * He (the mayor) shall be the chief conservator of the peace within the corporation. * * * He shall be the president of the council, and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie.

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2108 practice notes
  • Connecticut v. Johnson, No. 81-927
    • United States
    • United States Supreme Court
    • February 23, 1983
    ...799 (1963) (right to counsel); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge)). Resolving the question reserved three years earlier in Fahy v. Connecticut, 375 U.S. 85......
  • Mallinckrodt LLC v. Littell, No. CV-08-420-B-W.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • May 20, 2009
    ...personal, and substantial pecuniary interest 616 F.Supp.2d 145 in the outcome of a case, due process is abrogated. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Not every interest, however, is substantial enough to amount to a violation of due process. In one form......
  • Prime Rate Premium Fin. Corp. v. Larson, No. 18-2071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 11, 2019
    ...within "one of the continuing traditions of our legal system." Burnham , 495 U.S. at 619, 110 S.Ct. 2105 (plurality op.); Tumey v. Ohio , 273 U.S. 510, 523–32, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ; Murray’s Lessee v. Hoboken Land & Improvement Co. , 59 U.S. (18 How.) 272, 276–280, 15 L.Ed. 37......
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 2006
    ...Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972)); In re Murchison, 349 U.S. at 136, 75 S.Ct. 623 (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 "[N]ot `all questions of judicial qualification [, however,] involve constitutional validity.'" Aetna Life ......
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2097 cases
  • Connecticut v. Johnson, No. 81-927
    • United States
    • United States Supreme Court
    • February 23, 1983
    ...799 (1963) (right to counsel); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge)). Resolving the question reserved three years earlier in Fahy v. Connecticut, 375 U.S. 85......
  • Mallinckrodt LLC v. Littell, No. CV-08-420-B-W.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • May 20, 2009
    ...personal, and substantial pecuniary interest 616 F.Supp.2d 145 in the outcome of a case, due process is abrogated. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Not every interest, however, is substantial enough to amount to a violation of due process. In one form......
  • Prime Rate Premium Fin. Corp. v. Larson, No. 18-2071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 11, 2019
    ...within "one of the continuing traditions of our legal system." Burnham , 495 U.S. at 619, 110 S.Ct. 2105 (plurality op.); Tumey v. Ohio , 273 U.S. 510, 523–32, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ; Murray’s Lessee v. Hoboken Land & Improvement Co. , 59 U.S. (18 How.) 272, 276–280, 15 L.Ed. 37......
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 2006
    ...Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972)); In re Murchison, 349 U.S. at 136, 75 S.Ct. 623 (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 "[N]ot `all questions of judicial qualification [, however,] involve constitutional validity.'" Aetna Life ......
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2 firm's commentaries
  • The Federal Circuit Holds That The Structure Of The PTAB Is Constitutional
    • United States
    • Mondaq United States
    • November 15, 2021
    ...at *5. Mobility Workx alleged that this is an "impermissible mixing of judicial and administrative/executive roles," citing Tumey v. Ohio, 273 U.S. 510 (1927) and Ward v. Monroeville, 409 U.S. 57 (1972). Mobility Workx, LLC, 2021 WL 4762265, at The Federal Circuit reasoned that Mobility's a......
  • The Federal Circuit Holds That The Structure Of The PTAB Is Constitutional
    • United States
    • Mondaq United States
    • November 15, 2021
    ...at *5. Mobility Workx alleged that this is an "impermissible mixing of judicial and administrative/executive roles," citing Tumey v. Ohio, 273 U.S. 510 (1927) and Ward v. Monroeville, 409 U.S. 57 (1972). Mobility Workx, LLC, 2021 WL 4762265, at The Federal Circuit reasoned that Mobility's a......
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  • Rights, Structure, and Remediation: The Collapse of Constitutional Remedies.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 7, May 2022
    • May 1, 2022
    ...adjudicator to prove, in order to obtain reversal, that an impartial adjudicator would have acquitted him or her. See Tumey v. Ohio, 273 U.S. 510, 535 (125.) Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1131 (D.C. Cir. 2000). (126.) HUQ, supra note 2, at 145. (127.) See Bowsher v. Syna......
  • BEYOND STRICKLAND PREJUDICE: WEAVER, BATSON, AND PROCEDURAL DEFAULT.
    • United States
    • University of Pennsylvania Law Review Vol. 170 Nbr. 4, March 2022
    • March 1, 2022
    ...proceeds,' rather than being 'simply an error in the trial process itself.'" (quoting Fulminante, 499 U.S. at 310)). (30) Tumey v. Ohio, 273 U.S. 510, 535 (31) Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). (32) Fulminante, 499 U.S. at 309 (internal quotation marks omitted). (33) See, e.g......
  • Guiding Presidential Clemency Decision Making
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-2, July 2020
    • July 1, 2020
    ...end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (ruling that the Due Process Clause incorporates the common law rule that a judge must recuse himself if he has “a direct, perso......
  • THE ARCHITECTURE OF JUDICIAL ETHICS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • August 1, 2021
    ...grounding in historic practice). (156) Id. at 916. (157) See Dr. Bonham's Case [1610] 77 Eng. Rep. 646, 653 (K.B.). (158) Tumey v. Ohio, 273 U.S. 510, 524 (1927) ("[I]t is very clear that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the su......
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