Lapas attēli
PDF
ePub

Dissenting Opinion, per JONES, J.

itself may disclose the error to be vital and grossly violative of justice, and yet this judgment in effect holds that by this method of restricting the jurisdiction of the common pleas court the legislature has entirely abridged the right of the court of appeals to review the judgment.

As appears from the opinion of the court of appeals in this case the contention of the plaintiff in error was based solely on the claim that the verdict and judgment of the court below were against the manifest weight of the evidence. The plaintiff in error desired the judgment of the appellate court upon that question, but was denied

a review.

This case is one for personal injury, but obviously the principle applies to all classes of litigation. Is it conceivable that a litigant may now be deprived of liberty and property by the determination of a nisi prius jury, without the right of a judicial review, under the recently adopted provisions of our constitution? Under our present constitution the courts of appeals and the supreme court were created as a part of our judicial system and were given specific appellate jurisdiction unshackled by legislation. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, and Zonars v. Zonars, post, 518.

Before the adoption of the Constitution of 1912 the appellate jurisdiction of all courts was fixed by law. Ever since the adoption of the Constitution of 1802 the jurisdiction of the court of common pleas, both original and appellate, was such only as "shall be fixed by law." When the circuit court

Dissenting Opinion, per JONES, J.

was created by the Amendment of October 9, 1883, it was given only "such appellate jurisdiction as may be provided by law;" and under the Constitution of 1851 the supreme court was given only "Such appellate jurisdiction as may be provided by law." It will therefore be seen that, until the Amendment of 1912, the appellate jurisdiction of every court in this state was entirely statutory. But under the Amendment of 1912 the clause "such appellate jurisdiction as may be provided by law" was eliminated, and a broad field of appellate jurisdiction was given to the court of appeals to "review" the judgments of the courts of common pleas, and other courts of record as may be established by law. Cincinnati Polyclinic v. Balch, supra, where it is stated, at page 418, that the legislature "cannot add to or take from the appellate jurisdiction of the courts of appeals now conferred by the constitution."

Undoubtedly the express purpose of the Amendment of 1912 was to grant appellate jurisdiction to review the judgments of the inferior courts, unshackled by legislative interference. Section 6, Article IV of the Constitution as amended in 1912, provides that the courts of appeals shall have "appellate jurisdiction * * to review, affirm, modify or reverse the judgments of the courts of common pleas." This right of review is broad and comprehensive and may not be limited by legislation, as formerly, under the provisions of the old constitution.

Let us assume that the legislature, acting within its constitutional powers, should provide that the

Dissenting Opinion, per JONES, J.

common pleas court could grant but one new trial on the charge of the court, or for the admission or rejection of testimony, or for any other error of law, no one can doubt the power of the legislature to limit the jurisdiction of the common pleas court upon those features as well as upon the weight of the evidence, but what would be the effect? Obviously it could thus cut off the appellate jurisdiction of every court of appeals and also of the supreme court and thus effectualy annul the provisions of the present constitution conferring appellate jurisdiction upon those courts. Jurisdiction is defined to be "the power to hear and determine," and it is futile to shut our eyes to the fact that Section 11577, General Code, does not place a limitation upon jurisdiction. The question is squarely before this court: Can any one doubt that this judgment would be reviewable but for the enactment of Section 11577, General Code? The court of appeals did not refer to the case of Cincinnati Polyclinic v. Balch, supra. It was there held that the legislature had no power to limit the constitutional jurisdiction of the court of appeals to review, affirm, modify or reverse the judgments of the common pleas, and in the opinion in that case the statement is made that that section applies to all judgments of the courts of common pleas, and the word "all" is italicized in the opinion. And in the case of Zonars v. Zonars, reported without opinion, post, 518, it is held on the authority of the Polyclinic case that there can be no statutory abridgment of the right to review proceedings in divorce, although it had been the established prac

Dissenting Opinion, per JONES, J.

tice in this state, under the statutes as construed by this court, to deny the right of review in divorce cases. There can be no possible distinction as to the right to review, on the weight of the evidence, between divorce proceedings and other cases.

The principle here announced was settled in a criminal case, State of Ohio v. Mansfield, 89 Ohio St., 20. In that case as in this there was an attempt to invoke an old statute conferring appellate jurisdiction upon this court. This court held, syllabus 1: "This court acquires both original and appellate jurisdiction directly from the constitution of the state as amended September 3, 1912. The general assembly has no power or authority to limit or increase that jurisdiction."

In Wagner v. Armstrong et al., 93 Ohio St., 443, there was an attempt, by statute, to enlarge the jurisdiction of the court of appeals; here there is an attempt to diminish it. On page 446 of the opinion it is stated that "the jurisdiction of the courts of appeals was unalterably fixed by Section 6, Article IV of the new Constitution, and the legislature consequently could neither enlarge nor diminish it.

The judicial sanction given by this court in the Polyclinic and Zonars cases, supra, conforms to the manifest intention of the constitution-makers of 1912. When that constitution was submitted to a popular vote the constitutional convention submitted to the people of Ohio the text of this amendment accompanied by explanations "authorized by the convention." These explanations were printed with the official sanction of the convention, signed by its officials and spread broadcast throughout

Dissenting Opinion, per JONES, J.

If

the state for the instruction of its electorate. there was any doubt as to the intention to give the right to judicial review of actions tried in the court of common pleas that doubt is settled beyond peradventure by the official explanations embodied in the pamphlet issued to the people. They appear immediately under Section 6, Article IV, as follows:

"Under the existing judicial system which this amendment proposes to change, an action first tried in the court of common pleas, is carried thence to the circuit court for review, and thence to the supreme court for the same purpose, and either of the two courts may reverse the judgment and send it all back to the beginning in the court of common pleas. * *** This [proposed amendment] reduces proceedings to 'one trial and one review,'" etc.

Counsel for the defendant in error cite the case of Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, as upholding the right of the legislature to limit the number of times the appellate courts could reverse on the weight of the evidence. The judgment in that case was right for the reason that the case before the court was a case "pending" in the circuit court before the new constitution became effective, and Section 6, Article IV, provided that "pending cases" in the circuit court should be determined under the then existing laws. The reason for that decision is apparent. It applied the force of Section 11577 to those cases pending in the circuit court, or courts of appeals, when the new constitution took effect. However, one clause appeared in the syllabus of the Santoro case which was not necessary to its decision, and was not

« iepriekšējāTurpināt »