192 N.E.2d 236 | Ohio Ct. App. | 1962
The city of Toledo seeks to invoke the jurisdiction of this court to review a judgment of the Municipal Court of Toledo sustaining a demurrer to an affidavit charging the defendant with driving under the influence of intoxicating liquor, on the ground that the ordinance, pursuant to which the charge is brought, is in conflict with a state statute and unconstitutional, dismissing the affidavit, and discharging the defendant.
The judgment was entered June 20, 1961, and the city filed its notice of appeal therefrom on July 11, 1961 — twenty-one days after the entry of the judgment. Upon the assumption that the notice of appeal was not timely filed as a matter of right, on *248 July 11, 1961, the city also moved this court for leave to appeal on questions of law from that judgment, to which the defendant objects.
Section
"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
Section
"Appeal under Section
Section
"As used in Chapters 2931. to 2953., inclusive, of the Revised Code:
"(A) `Magistrate' includes County Court judges, police judges or justices, mayors of municipal corporation[s], and judges of other courts inferior to the Court of Common Pleas."
Therefore, since a Municipal Court is inferior to the Court of Common Pleas, appeals in criminal cases must be taken from a Municipal Court within ten days, and not within thirty days as was formerly provided in Section
Having failed to file notice of appeal within ten days, is this court clothed with jurisdiction to entertain and grant the *249 application of the municipality, filed within thirty days after the judgment, for leave to file an appeal?
In City of Toledo v. Kohlhofer (1954),
"The Supreme Court shall consist of three judges, any two of whom shall be a quorum. They shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law; * * *."
Section 2 of Article IV of the Constitution of 1851 provided, in part:
"* * * It [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law. * * *"
Section 5 of Article IV of the Constitution of 1851 provided for District Courts composed of Common Pleas judges, and Section 6 provided:
"The District Court shall have like original jurisdiction with the Supreme Court, and such appellate jurisdiction as may be provided by law."
The first sentence of Section 6, as amended October 9, 1883, provided:
"The Circuit Court shall have like original jurisdiction *250 with the Supreme Court, and such appellate jurisdiction as may be provided by law."
Prior to 1912, the jurisdiction of the Circuit Courts was not derived from the Constitution but was provided by statute, and the Revised Statutes provided in general terms for appeals without expressly conferring upon the state the right to appeal from judgments in criminal cases even from judgments of intermediate appellate courts.
The weight of authority in this country is against the right of the government to bring error in a criminal case unless specifically permitted by law, and this rule was recognized in Ohio prior to 1912. In State v. Josephs (1885),
In State v. Simmons (1892),
In State v. Hance (1904), 4 Cow. C. (N.S.), 541, 16 Cow. D., 273, the Circuit Court held that the Circuit Court had no jurisdiction to hear a petition in error filed by the state in a criminal *251 case to reverse the judgment of a Common Pleas Court discharging the accused, upon authority of the Simmons case and State v.Bour, 10 Cow. C., 58, 4 Cow. D., 4.
With regard to the jurisdiction of the Supreme Court, Section 2 of Article IV provided:
"* * * It [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in all cases involving questions arising under the Constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the Courts of Appeals, and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law. * * *"2
With regard to the jurisdiction of the Courts of Appeals, Section 6 of Article IV provided:
"* * * The Courts of Appeals shall have original jurisdiction in [same as Supreme Court] * * * and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse judgments of the Courts of Common Pleas, superior courts and other courts of record within the district as may be provided by law, * * *."3
Under the old Constitution, the jurisdiction of the appellate courts rested in the discretion of the General Assembly, but under the 1912 amendment this was changed by removing the power generally from the Legislature to the Constitution itself.Mahoning Valley Ry. Co. v. Santoro, Admr.,
Between 1912 and 1945, it was consistently and repeatedly held that the Court of Appeals acquired its jurisdiction directly and solely from Section 6 of Article IV and that there was no legislative authority to enlarge that jurisdiction. SeeHoffman v. Knollman (1939),
Consistent with its firm and repeated conviction that the Courts of Appeals derived their jurisdiction solely from the Constitution, in Eastman v. State, supra (
As amended, effective in 1945, and again in 1959,5 the provision now reads:
"The Courts of Appeals shall have original jurisdiction in [specified original actions] * * * and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district, * * *."6
Since the adoption of the amendment of Section 6 of Article IV effective in 1945, the Supreme Court has had occasion to comment upon the amendment on but few occasions.7
In Youngstown Municipal Ry. Co. v. City of Youngstown (1946),
Since 1945, the General Assembly has enacted a number of amendments relating to procedure on appeal, as well as jurisdiction. For example, Section
In Green v. Acacia Mutual Life Ins. Co. (1951),
"When the people amended Section 6, Article IV of the Constitution, by their vote on November 7, 1944, they could have given the General Assembly unlimited power to confer appellate jurisdiction on the Courts of Appeals, or they could have given the Courts of Appeals the authority to review orders granting motions for new trial. But they did not do so. They did enlarge the jurisdiction of Courts of Appeals by giving them appellate jurisdiction, as may be provided by law, to review judgments or final orders of boards, commissions, officers and tribunals, in addition to courts, but they still kept in the Constitution the provision that the review shall be confined to judgments or final orders."9
In his dissent, after italicizing "such jurisdiction as may be provided by law," Judge Zimmerman, at page 14, says: "Obviously, the purpose of this amended section was to remove the `jurisdiction' of Courts of Appeals from the confines of the Constitution and place it within the broad powers of the General Assembly."
Judge Hart in his dissent, in which Judge Edward S. Matthias concurred, also emphasizes "as may be provided by law" and remarks:
"The present Appellate Procedure Act has been in operation since September 1947, during which time the courts of this state have come generally to regard the vacating of a judgment *255 upon a motion for a new trial as a final order. In my opinion, this court is not justified in creating the confusion which a reversal of that rule of procedure will entail."
The confusion, which Judge Matthias predicted, might be removed should the court have the opportunity to rereview its divided opinion in the Green case.
In McAtee v. Western Southern Life Ins. Co.,
"By an amendment to Section
"The Legislature can no more designate an order final, which is not so in fact, than could it in the past, or now denominate an action a chancery case which did not meet the requirements specified by judicial construction. Borton v. Earhart,
It will be noted that Judge Ross said that the power conferred upon the General Assembly is not as wide as that conferred by the 1851 Constitution, apparently because of the limitation to judgments and final orders. Under the 1851 provision the clause was "and such appellate jurisdiction as may be provided by law" without reference to judgments and final orders of inferior courts and tribunals.
Under the Green and McAtee decisions, notwithstanding the constitutional provision that the Courts of Appeals shall have such jurisdiction as may be provided by law to review judgments or final orders of courts of record inferior to the Court of Appeals, the General Assembly has no authority to confer on Courts of Appeals jurisdiction to review any orders which do not constitute final orders or judgments which are not *256 so in fact as understood and accepted at the time of the adoption of the amendment effective in 1945. Nevertheless, those decisions do not prohibit the General Assembly from subtracting from such final orders or judgments or from failing to provide jurisdiction to review certain types of final orders or judgments. As a matter of fact, in the first paragraph of the syllabus in the Green case the court specifically says: "The latter may legislate as to the jurisdiction of the Court of Appeals to review," etc.
Under the 1945 amendment to the Constitution, does the state have the right of appeal from an adverse judgment in a criminal case?
It would seem to be without question that a judgment of a court inferior to the Court of Appeals discharging an accused is a final order. But prior to 1912, under the Revised Statutes, it was not such an order or judgment from which the state might take an appeal. The statutory provisions relating to appeals in criminal cases enacted since the adoption of the amendment effective in 1945 follow:
"In a criminal case, including a conviction for the violation of an ordinance of a municipal corporation, the judgment or final order of a court or magistrate inferior to the Court of Common Pleas, may be reviewed in the Court of Common Pleas, and a judgment or final order of a court of record or officer inferior to the Court of Appeals may be reviewed in the Court of Appeals. A judgment or final order of the Court of Appeals involving a question arising under the Constitution of the United States or of this state may be appealed to the Supreme Court as a matter of right. Such right of appeal shall extend to felony cases in which the Supreme Court has directed the Court of Appeals to certify its record and in all other criminal cases of public or great general interest wherein the Supreme Court has granted a motion to certify the record of the Court of Appeals. The Supreme Court in criminal cases shall not be required to determine as to the weight of the evidence." *257
It is observed that it refers to a conviction for the violation of a municipal ordinance without reference to the prosecution.
Section
Section
Section
"Appeal under Section
It is noted that the first sentence refers to filing an appeal as a matter of right within thirty days after judgment and sentence or from an order overruling a motion for a new trial or an order placing a defendant on probation, thus indicating that the Legislature was thinking about the defendant rather than the state.
Section
Section
"Before the filing of a notice of appeal or a motion for leave where leave must first be obtained, a copy thereof must be served upon the prosecuting attorney. Notice of appeal shall contain a description of the judgment so as to identify it, and motions for leave to file shall state the time and place of hearing."
It will be noted that no provision is made for serving similar *258 notice upon the accused in the event of an appeal by the prosecution.
Sections
Section
"Whenever a court superior to the trial court renders judgment adverse to the state in a criminal case or proceeding, the state, through either the prosecuting attorney or the Attorney General, may institute an appeal to reverse such judgment in the next higher court. If such conviction was for a violation of a municipal ordinance, such appeal may be brought by the solicitor of the municipal corporation. Like proceedings shall be had in such higher court at the hearing of the appeal as in the review of other criminal cases. The clerk of the court rendering the judgment sought to be reversed, on application of the prosecuting attorney, Attorney General, or solicitor, shall make a transcript of the docket and journal entries in such case, and transmit it with all bills of exceptions, papers, and files in the case, to such higher court."
If the state were otherwise authorized to institute an appeal, that section might be unnecessary.
In lieu of any provision authorizing the state to take an appeal from a judgment of the trial court to the Court of Appeals in a criminal case, Section
"The prosecuting attorney or the Attorney General may except to a decision of the court and present a bill of exceptions thereto. The court shall sign said bill and it shall be made a part of the record."
Section
"The prosecuting attorney or the Attorney General may present a bill of exceptions in a criminal action to the Court of Appeals or the Supreme Court and apply for permission to file it with the clerk of the court for the decision of such court upon the points presented therein. Prior thereto, he shall give reasonable notice to the judge who presided at the trial in which such bill was taken, of his purpose to make such application. If the Court of Appeals or the Supreme Court allows the bill to be *259 filed, the prosecuting attorney or Attorney General shall, within ten days of the filing of the bill, file his brief in support of such exceptions and forthwith serve a copy thereof upon the trial judge and any attorney appointed by the judge to argue the exceptions against the prosecuting attorney or the Attorney General."
Section
"If the Court of Appeals or the Supreme Court is of the opinion that the questions presented by a bill of exceptions should be decided, it shall allow the bill of exceptions to be filed and render a decision thereon. This decision shall not affect the judgment of the Court of Common Pleas in said cause, nor shall said judgment of the Court of Common Pleas be reversed, unless the judgment of the Court of Appeals or the Supreme Court reverses the judgment of the Court of Common Pleas on its ruling on a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment. In all other cases the decision of the Court of Appeals or the Supreme Court shall determine the law to govern in a similar case."
The provisions of Section
Following the reasoning of the pre-1912 opinions of the Supreme Court, that the weight of authority in this country is against the right of the state to bring error in a criminal case, which decisions have not been overruled except in the Eastmancase as a result of conferring jurisdiction directly upon the Courts of Appeals by the Constitution and in the light of the provisions of the amendment effective in 1945 returning to the General Assembly the right to provide such jurisdiction by law, and since the General Assembly has not expressly provided by statute the right of the state to institute an appeal other than from an intermediate appellate court or by way of leave to file a bill of exceptions, we are inclined to the belief that no such right is conferred upon the prosecution. We recognize that for the purpose of the instant case this conclusion is obiter dicta but it is made preliminarily as a predicate to our decision on the particular question presented. *260
As indicated at the outset of this opinion, Section
The conclusion we have reached herein with respect to the right of the state to take an appeal as a predicate for our conclusion that a municipality may not take an appeal from an adverse judgment in a criminal case is in conflict with the judgment pronounced upon the same question by the Court of Appeals for Franklin County in State v. Dean,
The application for leave to file appeal is overruled and the cause is remanded to the Municipal Court for execution for costs without prejudice to the right of the city of Toledo to reinstitute another action against the defendant.
Application overruled.
SMITH and DEEDS, JJ., concur.
"The Judicial Council advocates amendment of Article
After quoting verbatim the provisions of Sections 1, 2, and 3 of Article III of the Constitution of 1802, in which the clause, "which court shall have common law and chancery jurisdiction in all such cases as shall be directed by law," was italicized, the report further states:
"The present Constitution was formulated in 1851 and when adopted gave the General Assembly power to determine the jurisdiction of the courts, excepting however, jurisdiction as to certain original writs. Circuit Courts, *262 or the intermediate reviewing courts comparable to the present Courts of Appeals, originated with the Constitution of 1851 and their jurisdiction was provided by Section 6 of Article IV which reads as follows:
"`The Circuit Court shall have like original jurisdiction with the Supreme Court and such appellate jurisdiction as may be provided by law.'"
The report further states:
"It was not until 1913 that the appellate jurisdiction of Courts of Appeals was made constitutional instead of legislative. * * * Shortly, after the amendment of that section the Supreme Court of Ohio, in the case of Cincinnati Polyclinic
v. Balch,
"`1. Section
"`2. Section 26 of the act of April 17, 1913 (103 Or. L., 279) as amended February 6, 1914 (104 Or. L., 187), in so far as it purports to limit the appellate jurisdiction of the Court of Appeals to review, affirm, modify or reverse the judgment of the Courts of Common Pleas within its district, is unconstitutional and void.'
"The opinion in that case is clear and definite in holding there is no authority in the General Assembly to add to or to take from the appellate jurisdiction of the Courts of Appeals as conferred by the constitution.
"Since the date of the amendment to Section 6, Article IV of the Constitution, the appellate jurisdiction of the Courts of Appeals has remained unchanged, and in view of present conditions this situation should no longer continue.
"The Judicial Council recommends that the words `and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law,' be stricken from Section 6, Article IV, and that there be substituted in lieu thereof:
"`and such jurisdiction as may be provided by law to review, affirm, modify or reverse judgments or orders of administrative boards, commissions or officers, and of courts of record inferior to the Court of Appeals within the district.'
"This proposed amendment will not affect the original jurisdiction conferred by the Constitution on the Courts of Appeals in quo warranto, mandamus, habeas corpus, prohibition and procedendo. The recommended amendment will return to the General Assembly the power to determine the appellate jurisdiction of the Courts of Appeals." *263
After referring to the further amendment to permit appeals from boards and commissions the report concludes:
"To summarize the foregoing, the recommendations of the Judicial Council are as follows:
"1. The Council recommends the amendment of Section 6, Article IV of the Constitution to return to the General Assembly the power it originally had to provide by law for the appellate jurisdiction of the Courts of Appeals throughout the state.
"2. The Council recommends that the appellate jurisdiction of the Courts of Appeals be further enlarged to permit appeals from such orders of boards, commissions, officers or courts as the Legislature may, in its discretion, permit."
In a report by the late Judge Arthur W. Overmyer on behalf of the Judicial Council to the Ohio Bar Association on April 12, 1943, Judge Overmyer states: "the proposal advocates the amendment of Article IV, Section 6 of the Constitution to returnto the General Assembly the right to determine the appellate jurisdiction of the Courts of Appeals of Ohio." (Italics supplied.)