Village Of Fairview v. Griffee
| Decision Date | 22 December 1905 |
| Docket Number | 8797 |
| Citation | 73 Ohio St. 183,76 N.E. 865 |
| Parties | Village Of Fairview v. Giffee. |
| Court | Ohio Supreme Court |
Legislative branch of government - Is expressly prohibited from exercising judicial power - But may empower and define jurisdiction of courts - General assembly may determine by which department of government an act may be exercised - Where constitution does not distinctly define the judicial power - Sections 1536-60 and 1536-61, Revised statutes - Powers of government - Legislative authority.
1. The legislative branch of the state government is expressly prohibited from exercising judicial powers, except as expressly conferred in the constitution, and it is expressly empowered to define the jurisdiction of the courts. Under the constitution of this state the power of defining the functions of the judicial department is only limited by the general rule that a grant of general powers to any department constitutes of itself an implied exclusion of all other departments from the exercise of such powers; and when the constitution does not distinctly define and distribute judicial powers, and it is not clear whether an act is wholly the exercise of legislative, executive or judicial power, it is within the power of the general assembly, as the depository of the legislative power of the state, to determine by which department it shall be exercised.
2. Thee act entitled "An act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships," 95 O. L 259, Revised Statutes, sections 1536-60 and 1536-61, does not confer legislative power on the court of common pleas or a judge thereof, and is constitutional.
Under favor of "An act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships," 95 O L., 259 Revised Statutes, sections 1536-60 and 1536-61, I. B. Giffee filed his petition in the court of common pleas of Guernsey county praying that certain unplatted farm lands be detached from the incorporated village of Fairview and attached to the adjoining township of Oxford. In the said petition the plaintiff alleged that the defendant is a municipal corporation which has a population of about three hundred, which did not increase any in the last thirty years and that the said lands which are described were never laid out into streets or alleys, and are not now, and never were mapped or platted, and are not needed for streets or alleys, or for the extension of the said village, nor for any building, manufacturing or village purposes, and that the same never will be so needed; that the said farm lands are of no benefit to the village in any way, except that the defendant village has been levying taxes thereon yearly for its own purposes; and that the detachment of the said lands from the incorporated village and the attachment of the same to said Oxford township will not affect the good government of said adjacent territory, or of said village, or injure them in any way. The statute under which this proceeding was instituted is as follows:
Section 1. That the owner or owners of unplatted farm lands lying within the corporate limits of any city or village may file a petition in the court of common pleas of the county in which such lands are situated, in which such owner or owners shall be named as plaintiffs, and such city or village shall be the defendant, setting forth the reasons why such lands should be detached, and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause proceed as in other causes.
Section 2. On the hearing of such cause if the court shall find that such lands are farm lands and that the same may be detached without materially affecting the good government of adjacent territory within such village or city limits, an order and decree may be made by the court in his discretion and entered on the record that such lands be detached from such city or village and be attached to the most convenient adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to the court may seem right.
Section 3. This act shall take effect and be in force from and after its passage."
The court of common pleas sustained a demurrer to the said petition upon the ground that the said act is unconstitutional and rendered final judgment against the plaintiff. The circuit court reversed the judgment of the court of common pleas, and this proceeding is now prosecuted to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.
Mr. Fred L. Rosemond, for plaintiff in error.
Messrs. Wells & Sheppard and Mr. R. T. Scott, for defendant in error. The court also considered the briefs of Mr. P. J. Chase and Mr. James O. Troup, for plaintiff in error, and Mr. J. W. Grabiel, for defendant in error, in City of Bowling Green v. Sutton, 72 Ohio St. 676 (unreported); and of Messrs. Snook & Wilcox, for plaintiff in error, and Messrs. Snook & Savage, for defendant in error, in cases Village of Grover Hill v. Sutton, 72 Ohio St. 676 (unreported), and Village of Grover Hill v. Eaton, 72 Ohio St. 676 (unreported).
The act of the general assembly under which the petition below was filed (95 O. L., 259, Revised Statutes, sections 1536-60 and 1536-61) is assailed upon two grounds; first, that it imposes legislative power upon the judiciary; and, second, that it discriminates in favor of an arbitrary, unreasonable and unconstitutional class.
It would be difficult, if not quite impossible, to maintain that the detachment of territory embraced within the limits of a municipal corporation is not within the legislative power conferred on the general assembly. At least, it seems to be the settled law of this jurisdiction that the legislature may either attach or detach territory adjacent to a municipal corporation. But that is not the proposition which is involved in the decision of this case. The question to be determined here is whether or not the legislature, in providing the conditions and limitations under which the legislative will may be carried out in a general law, may choose the judicial department as its instrumentality.
The foundation of the argument against the constitutionality of this act is laid upon the doctrine of the distribution of governmental powers and functions. It seems to be assumed that the separation of executive, legislative and judicial powers is complete and distinct under the constitution. Theoretically it is so; but in practice it is not so and never was so; and by the best modern writers on political science it is recognized to be practically impossible to distinctly define the line of demarkation between the different departments of government. This was well expressed in Taylor v. Place, 4 R. 1., 332: "To some extent, and in some sense, each of the powers must be exercised by every other department of the government in order to the proper performance of its duty." So likewise it was said by White, J., in State ex rel. v Harmon, 31 Ohio St. 250, that It was long ago convincingly pointed out by...
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