187 N.E. 733 | Ohio | 1933
Lead Opinion
The first question presented is whether the relatrix has mistaken her remedy in asking relief in the form of a writ of prohibition.
This court is of the view that there is little difference between the principles involved in this case and in the cases of State, ex rel. Patton, v. Myers, Secy. of State, ante, 95,
The second question presented involves the validity and operation of the charter and the nature of the office of judge of such police court.
It is the contention of the relatrix that all the provisions of Article VI of the Charter are inoperative and unconstitutional, by reason of the decision of this court in the case of State, ex rel. Cherrington, Pros. Atty., v.Hutsinpiller,
The five candidates involved in this action have filed their nominating petitions under the charter, and are *207 not entitled to have their names placed on the ballot if the statutory provisions apply.
That municipalities in this state have authority to provide by charter for the nomination of their elective officers requires no other citation of authority than the frequently cited case of Fitzgerald et al., Board of Deputy StateSupervisors, etc., v. City of Cleveland,
"Under Sections 3 and 7, Article XVIII, as so amended, municipalities are authorized to determine what officers shall administer their government, which shall be appointed and which elected, that the nomination of elective officers shall be made by petition by a method prescribed, and elections shall be conducted by the election authorities prescribed by general laws."
Likewise, in the case of State, ex rel. Taylor, v. French,
Furthermore, in the case of State, ex rel. Frankenstein, v.Hillenbrand,
In paragraph 1 of the syllabus the rule is summarized as follows: "Section 7 of Article XVIII of the Constitution or Ohio vests in cities adopting a charter the power to prescribe the manner of the selection of their own purely municipal officers."
It is worthy of note that among the judges who concurred in this unanimous decision was Judge Donahue, who dissented in theFitzgerald case, supra.
When it is remembered that the broad language of Article VII of the Charter requires candidates for any elective office to be nominated only by petition there can be no doubt as to its application to all elective officers, including police judge.
However, the relatrix insists that the provision is inapplicable because a police judge is a state and not a municipal officer. She lays particular stress upon the fact that the court here involved is now a creature of the statute. Neither she not the respondents cite Ohio authority with reference to this contention. Nevertheless, in 28 Ohio Jurisprudence, 302, appears the statement that "a Judge of a municipal court is a municipal and not a state officer." Likewise in the case of State, ex rel. Thompson, v. Wall, Dir.of Finance, 17 N. P. (N.S.), 33, 28 Or. D. (N. P.), 631, it was held that a judge of a municipal court is a municipal and not a state officer. Of course this is a decision of a nisi prius
court, but the cogency of its reasoning and the recognized authorities upon which it relies entitle it to consideration, especially in view of the fact that the judgment was affirmed by the Court of Appeals. Of the same import are two decisions cited by the *209
respondents. In the case of Franklin v. Westfall,
In conformity with the foregoing views the writ is denied.
Writ denied.
ALLEN, STEPHENSON, BEVIS and ZIMMERMAN, JJ., concur.
JONES and MATTHIAS, JJ., concur in propositions 1 and 2 of the syllabus, but dissent from propositions 3 and 4, and from the judgment.
Dissenting Opinion
The crucial question is, Are nominations by direct primaries or petition for municipal officers controlled by city charters or by state law? The majority holds that such nominations are governed by the provisions of the charter and that the state law does not control. In so doing they ignore entirely the provisions of Section 7, Article V, of the state Constitution, which was adopted in 1912 at the same time that the home rule provisions for self-government of cities were adopted. Nowhere in the home rule provisions does the term "nominations" appear. On the other hand, when the people of Ohio, in 1912, adopted the home rule provisions, they also adopted the following provisions of the Constitution: Article V, Section 7: "All nominations for * * * municipal offices shall be made at direct primary elections or by petition as provided by law."
By this provision of the Constitution the state reserves to itself the direct control over the methods of nominations, whether made by primary election or by petition. Touching this particular feature the majority opinion cites paragraph 2 of an alleged syllabus in the *210
case of Fitzgerald v. City of Cleveland,
If the power granted to home rule cities in respect to nominations is all-inclusive, it could as well be argued that city charters could provide that nominations for municipal officers could be made by conventions, or by some other method than by primary election or petition. In principle, this must be the legal logic of the majority from which it cannot escape and with which we disagree.
I have not quoted all of the provisions of Section 7, Article V. That section also contains a provision that:
"Direct primaries shall not be held for the nomination * * * for the officers of municipalities of less than two thousand population, unless petitioned for by a majority of the electors of such township or municipality."
By a parity of reasoning, if a city charter contravened that provision of the Constitution under the so-called implied power of self-governing cities in respect to nominations, under the principle upheld by the majority this court would be compelled to hold that the charter provisions governed and that those constitutional provision did not. However, in 1922, five members of this court (Chief Justice Marshall and Judge Wanamaker, dissenting) held that the last-quoted provision of the section under consideration lodged the power controlling nominations in the General Assembly, the first paragraph of the syllabus reading as follows: "The power to provide for all nominations for elective municipal officers of municipalities of 2,000 population and more was delegated to and lodged in the general assembly upon the adoption of Section
The case of State, ex rel. Frankenstein, v. Hillenbrand,
The controlling point to which we all agreed is found in the second paragraph of the syllabus. That merely decided that the city of Cincinnati had the power to designate the term of office which the mayor should hold. The question relating to the method of nominations was not decided, nor was Article V, Section 7 of the Constitution, alluded to. The syllabus of the case must be read and applied in the light of the peculiar facts and questions presented and considered by the court. That point has frequently been decided by this court as shown by the numerous cases cited in volume 11, Ohio Jurisprudence, page 798.
The most recent decision of this court upon that feature is contained in the case of Baltimore O. Rd. Co. v. Baillic,
It is needless to pursue this subject further except to say that when the people adopted, at the same time, home rule provisions for the government of cities and also the provisions of Article V, Section 7, relating to nomination of municipal officers, the Constitution retained control in the state over the power, means, and methods of nomination of municipal officers by primary election and petition; to hold otherwise, as stated by Donahue, J., in his quoted opinion, would be but a clear usurpation of authority by this court if we refuse to *213 adhere to the plain and unambiguous terms of the Constitution itself. While we agree with the feature of the majority opinion relating to the remedy, we disagree with the proposition that the smaller unit — the city — can by charter assert the power to control nominations, which the state has distinctly controlled by clear constitutional and statutory provisions.
MATTHIAS, J., concurs in the dissenting opinion.