246 N.E.2d 607 | Ohio Ct. App. | 1969
This case is before us as an action originating in this court for a writ of prohibition.
In accordance with the provisions of Sections
Defendant Stokes filed a motion to quash summons, contending that the Probate Court lacked jurisdiction in *248
the matter, under the theory that the statutes under which this removal procedure was initiated have been repealed by implication by virtue of the enactment of statutes now known as Sections
We, therefore, are not involved with the question whether the charges in the complaint filed with the Probate Court have any factual merit, or whether there is any justification for the removal prayed for. The sole question confronting us is whether Section
Sections
Sections
"The proceedings provided for in * * * [Sections
Further distinctions between the two procedures herein involved, and the histories of their enactments and amendments, are set forth and discussed below.
We must start with the presumption that, where two similar statutes exist, their coexistence was intended by the General Assembly. Once such intent is questioned, as here, the courts may inquire into the language and effect of the statutes, to see whether a conflict or logical inconsistency is apparent. Even then, however, the courts must see whether such conflict or inconsistency may be reconciled by some reasonable interpretation. Only if such reconciliation is thereby impossible, may repeal by implication be found. State, ex rel.Fleisher Engineering Const. Co., v. State Office Bldg. Comm.
(1930),
It is a general rule that repeals by implication are not *250
favored. Where a prior enactment of a special statute is followed by a later enactment in general terms, which does not expressly contradict the provisions of the prior act, the general act will not be said to repeal the prior one, "unless such intention is clear." Even where two such acts have conflicting terms, "neither necessarily abrogates the other, * * * and it is immaterial which is of the later date." Commissioners v.Board of Public Works (1884),
Relator cites paragraph one of the syllabus of Western Southern Indemnity Co. v. Chicago Title Trust Co. (1934),
"Where two sections of the General Code contain inconsistent provisions relating to the same subject-matter, the later enactment must prevail and the earlier is repealed by implication."
We acknowledge the validity of that statement, but also note that paragraph three of the syllabus of the same case provides:
"A special statute covering a particular subject-matter must be read as an exception to a statute covering the same and other subjects in general terms."
Relator contends that Section
The basic test, then, as to whether a new Constitution containing no express repeal of earlier legislation repeals by implication a pre-existing statute, depends upon one *251
rather simple question: Is the statute one which is sufficiently consistent with the new Constitution to have been capable of passage after the new Constitution took effect? If the answer is in the affirmative, the statute cannot be said to have been repealed by implication; if in the negative, such repeal is implicit in the adoption of the new Constitution. Cass v.Dillon (1853),
It is obvious that Section 38 of Article II of the Constitution, which section was adopted in 1912, clearly authorizes such laws as Section
"Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the General Assembly for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the Constitution."
Of special significance is the first word, "Laws," which, being in the plural, clearly authorizes more than one procedure for the removal of public officers. Before proceeding to apply existing law to the situation, it would be helpful first to review the history of the enactment of the two statutes and one constitutional provision herein involved.
Sections
Section
The provisions of Sections
Notwithstanding these distinctions, the provisions of the more recent general enactment are so broad in scope that they may fairly be said to encompass all the grounds of the older enactment relating solely to municipal officials.
Of equal note is the first sentence of the later act (now the first sentence of Section
However, the original bill contained (as Section
Respondents cite the case of In re Removal of Member ofCouncil Joseph Coppola (1951),
Relator counters with the argument that the question of the repeal by implication of Section
"A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication."
We cannot dispute that such rule is well-established. However, the court in Coppola clearly stated,
"Section 4670, General Code [now Section
While it is true that the Coppola case raised only the question whether certain acts by councilmen in previous terms fell within the purview of the section, we cannot assume that the Ohio Supreme Court, in 1951, would hear a case, publish an opinion, and remand for further proceedings, where all proceedings arose from a statute which had been repealed by implication decades earlier. Moreover, the court held that such section "authorizes complaints such as those in the present case." A similar statement is found in the syllabus of the case. Clearly, a defunct statute cannot be said to authorize anything, and the statement of the Ohio Supreme Court in this regard leaves no doubt that it considers the statute very much operative.
See, also, State, ex rel. Gettles, v. Gillen (1925),
It is also settled that, where two statutes are enacted at different times, and both are subsequently and simultaneously re-enacted as part of a recodification, there is no longer the element of a subsequent enactment, which is a sine qua non of repeal by implication. State v. Hollenbacher (1920),
Where there is an ambiguity or a conflict between two or more statutes purporting or seeming to be mutually exclusive, then the courts can, in the exercise of their authority, declare the earlier statute or statutes repealed by implication. Judicial authority, insofar as it relates to legislative enactments, may be used to fill a void or to remove a *255
contradiction. However, judicial fiat may never supplant the clear expression of legislative intent. Acme Engineering Co. v.Jones (1948),
This distinction was very recently reaffirmed in the case ofHenry v. Central Natl. Bank (1968),
"2. The primary purpose of the judiciary in theinterpretation or construction of statutes is to give effect tothe intention of the General Assembly, as gathered from the provisions enacted, by the application of well-settled rules of interpretation, the ultimate function being to ascertain thelegislative will.
"3. The rule is that where two conflicting enactments are passed at the same session of the General Assembly, the latest enactment in point of time will prevail. It, however, as well asall other rules of construction dealing with repeals byimplication, are mere canons of construction. Such canons areonly aids to the ascertainment of the legislative intent andmust yield to such intent if the same be otherwise. They shouldnever be followed to the extent of defeating or overriding thedefinite intent of the General Assembly." (Emphasis added.)
The Henry case dealt with the question which of two conflicting versions of Section
In the case of Leach v. Collins (1931),
"* * * [The older statute] is a special statute enacted for a particular purpose and provides for a specific and definite proceeding and prescribes in detail the method and form of procedure. It is well settled that such specific statutoryprovisions are to be regarded as exceptions to general statutoryprovisions, and that the rule that repeals by implication arenot favored has additional force under such circumstances.State, ex rel. Elliott Co., v. Connar, Supt. of Dept. Pub.Works, ante, 310,
It is noted that precedence was given in the Leach *257 case to a prior special statute even though the subsequent general codification attempted to supplant all earlier ballot forms. The court based its decision, in part, upon the rule that implied repeal is not favored and, in part, upon the fact that the earlier statute provided for "the entire procedure" for conducting a special election to determine the question of territorial detachment.
We cannot ignore that the case now before us not only is also involved with an older special statute (actually several statutes combined) which sets forth the entire procedure for proceedings in the Probate Court for the removal of a municipal officer, but also contains two additional elements which were lacking in the Leach case: (1) the subsequent general statutes (Section
Where two statutes appear contradictory, but are both susceptible of reasonable construction and interpretation which will not nullify either statute, the courts have a duty to so construe and interpret them. Paragraph one of the syllabus ofHumphrys v. Winous Co. (1956),
It may appear unusual, or strange, that the General Assembly should see fit to provide for two such alternatives as those herein involved, one (Section
We acknowledge the general rule that a conflict between two existing statutes may give rise to a presumption that the more recently enacted statute repeals the older one. Lorain PlankRoad Co. v. Cotton (1861),
We note that relator suggests that the word "methods," *259
as used in the saving clause of Section
In this connection, relator also contends that "the word `authority' is limited in its application by reference back to the term `Governor.'" Thus, it is maintained, the final sentence of Section
It ought to be here noted that Section
It is clear that Section 2913, General Code (now Section
Thus, relator's contention as to a limitation on "other authority" is without merit. It is also noteworthy that four other "authorities" (Probate Court, Board of County Commissioners, prosecuting attorney and grand jury, all under Section
Relator contends that the right of appeal is denied to a complainant under the Probate Court procedure (Section
Relator further argues that the Probate Court procedure (Section
The Ohio Supreme Court repeatedly has held that a special statutory provision is an exception to an alternate provision which is provided in another more general statute, and that such special provision retains its viability notwithstanding the general provisions. Eggers v. Moore (1955),
For the reasons herein stated, the demurrer by respondents *262 to relator's petition for writ of prohibition is sustained. The parties have agreed that this court's ruling on respondents' demurrer will be dispositive of the jurisdictional question raised, and the relator not being able to plead further, judgment is entered for respondents. The petition for writ of prohibition is dismissed at relator's costs.
Demurrer sustained and writ denied.
SILBERT, C. J., ARTL and CORRIGAN, JJ., concur.