author: Spear, J.

text:
    The State v. Borham.

      Mayor of a City, having no police court, has final jurisdiction — i To determine prosecution for misdemeanor, when — Section 1817, Revised Statutes — Legal proceedings.

    By force of section 1817, Revised Statutes, a mayor of a city in which there is no police court, has final jurisdiction to hear and determine any prosecution for a misdemeanor where the accused is not entitled to a trial by jury, and it is not the mayor’s duty, in such case, to require the accused to enter into recognizance to appear in a higher court, although the complaint is not by the party injured.
    (No. 8948
    Decided May 2, 1905.)
    Error to the Circuit Court of Belmont county.
    The defendant in error, Ross Borham, was convicted and sentenced upon his own confession, before the mayor of the city of Bellaire, Belmont county, on a charge of keeping his saloon open on Sunday. Habeas corpus was prosecuted to the court of common pleas of that county on the part of Borham, and he was remanded to the custody of the officer. Upon error to the circuit court the judgment of the common pleas was reversed. The state brings error.

      Mr. H. T. Shepherd and Mr. Cooh Danford, attorneys for plaintiff in error.

      Messrs. Tollman & Spriggs, attorneys for defendant in error.
   Spear, J.

The affidavit upon which the defendant Borham was arraigned in the mayor’s court of Bellaire was made by the chief of police of that city, one Mahone, on the eleventh day of May, 1903, and charged Borham with keeping a room (saloon) open on Sunday, May 10,1903, the room not being a regular drug store, contrary to the statute made and provided, et cetera.

The statute referred to is section 4364-20, Revised Statutes, as amended April 3,1902, 95 O. L., 87. This amendment provides that the punishment shall be a fine not exceeding one hundred dollars and not less than twenty-five dollars for the first offense, and for each subsequent offense a fine of not more than two hundred dollars, or imprisonment not less than ten nor more than thirty days, or both. The affidavit charged only a first offense. Imprisonment, therefore, was no part of the sentence authorized or given.

Being arraigned, the accused plead guilty. The mayor thereupon imposed a fine of seventy-five dollars and costs, and ordered the accused to stand committed to the jail of Belmont county until paid or otherwise released according to law.

Being taken before the, court of common pleas on a writ of habeas corpus, that court, upon hearing, found that the accused was lawfully imprisoned and thereupon remanded him to the custody of the sheriff.

Upon error to the circuit court, that court, as appears by the docket and journal entries, reversed the judgment of the common pleas because they found manifest error in the record and proceedings in this, to-wit: “The court below erred in that it should have held that the said mayor had no jurisdiction to sentence the said Borham, as the affidavit was not made by the party injured. ’ ’ The court then reversed the judgment of the common pleas, at the costs of the state, and proceeded to further order the accused discharged.

It is insisted by counsel for the defendant in error that the printed record is defective in that the hill of exceptions taken in the common pleas court upon the'hearing in the habeas corpus proceeding is not printed and .presented to this court. We think the defect, if it exists, is not important. The record of the court of common pleas was made up in the interest of the accused, and while it appears from the docket entry of the common pleas that a ‘hill of exceptions was filed there, and appears from the docket entry of the circuit court that a hill of exceptions from the common pleas was filed there, it does not appear that the record presented to the circuit court, upon which that court was asked to determine the rights of the parties, embraced any bill of exceptions. The certificate of the clerk of the common pleas certifying to the record made up in the interest of the accused, does not contain any hill of exceptions. But beyond this the docket entry and the journal entry of the circuit court fail to show that a hill of exceptions was considered by that court, as part of the record of the court below, and do show distinctly that the only error which the circuit court found in the proceedings of the court below was the error already referred to, viz.: that the common pleas ought to have held that the mayor had no jurisdiction to sentence Borham inasmuch as the affidavit upon which he was arraigned was not made by the party injured; a simple question of law. No other question appears to have been before the circuit court. It would be a darkening of counsel to assume that the absence of that bill of exceptions in the circuit court and the printed record here is of the slightest consequence.

The mayor acted, in thus taking final jurisdiction and imposing sentence, upon the authority granted by section 1817, Revised Statutes, which provides that the mayor “shall have final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is, by the constitution, entitled to a trial by jury.”

But it is contended by counsel for the accused, and doubtless this was the view taken by the learned circuit court, that the section above quoted is controlled in this respect, if not wholly superseded, by other sections of the statute. The section specially referred to is 7146, and it is insisted that if section 1817 is construed as giving mayors jurisdiction in prosecutions for misdemeanors to render final judgment where there is a plea of guilty and the complaint is not by the party injured, it renders nugatory as to one class of magistrates the provisions of section 7146 as amended many years after the passage of section 1817. It is further insisted that where there are contradictory provisions, and both are susceptible of a reasonable construction which will not render nugatory any part of either, it is the duty of the court to give such construction. Section 7146 does provide that where one accused of a misdemeanor is brought before a magistrate on the complaint of one other than the person injured, and pleads guilty, the magistrate shall require him to enter into a recognizance to appear at the proper court. It is also true that, in the broad sense, a mayor is a magistrate, so that there is conflict in the text of the two sections. But the contention of counsel rests upon what we think is a wrong impression as to the order in which these sections were enacted. They are right in saying that 7146 has been amended since the enactment of 1817. But that fact has no special significance because the amendment was not with respect to this feature of the section. That remains in legal effect as first enacted, and it is not correct to assume that it is in that respect a later statute than section 1817. An examination of the year books shows that the act making it the duty of the magistrate to bind over on a plea of guilty where the complaint is not by the party injured, is first found in section 34 of the act of May 6,1869, 66 O. L., 293, while provision for final jurisdiction to mayors in prosecutions for misdemeanors where the accused is not entitled to a jury is found first in the revision of 1880, 367. Undoubtedly this section should receive the same construction now that it would have received just after its passage. This, then, is the situation. With the -provision of 7146 requiring recognizance to be given (which had been in force for a decade) before it, the general assembly (for we must assume, whatever the probabilities may be, that that body knows and has in mind the laws that are in force upon any subject about to be legislated upon), proceeded to enact section 1817. The language is at war with the text of 7146. Which shall prevail? The language of the later enactment is clear and unequivocal. No doubt exists as to the legal signification of the terms used. The mayor is given final jurisdiction to hear and determine where the accused is not entitled to a trial by jury. It is sought to make the point that the mayor does not “hear” if there is a plea of guilty. Why not? The prisoner hears the charge; the court hears the plea. Must the mayor go on and listen to testimony after such plea in order to give to the proceeding the element of a hearing? Surely not. And why may he not as certainly and as lawfully “determine,” upon the confession, as he could upon the testimony of witnesses?

We are constrained to the conclusion that section 1817 was intended by the general assembly as an exception to the general provisions of 7146. Had the intent been otherwise, it would have been entirely easy, by the use of a half dozen words, to make that purpose plain. No such words are used. This conclusion is strengthened rather than weakened by the fact that, after the enactment of section 1817, the general subject was further considered as is shown by the amendment to section 7146, to which counsel for defendant call attention; and the fact that no change was then made in section 1817 indicates that none was desired. It is the duty of the courts to enforce plain statutes as they find them. Slingluff v. Weaver, 66 Ohio St., 621. By these plain terms final jurisdiction is given the mayor, provided only that the offense charged is a misdemeanor and that the accused is not entitled to a trial by jury. Section 4364-20, as amended April 3, 1902, makes the punishment for the first offense a fine, with costs. It was, therefore, only a misdemeanor, .and the accused was not entitled to a jury trial. Inwood v. The State, 42 Ohio St., 186. The mayor, therefore, was justified in exercising final jurisdiction.

We are not called upon to consider the wisdom or unwisdom of the statute; nor is it any part of our duty to reconcile, further than has been hereinbefore attempted, what appear to be conflicting provisions where the provision applicable to the matter in hand is, as it is in this case, clear beyond question.

Hanaghan v. The State, 51 Ohio St., 24, is cited as giving the key to the proper construction of section 1817. We fail to see the application. The court in that case was dealing with a trial before a justice of the peace where the accusation was such as gave the accused a right to a trial by jury and involved a construction of sections 7146 and 7147. No reference whatever was made, and none was needed, to section 1817. We have no such case.

The judgment of the circuit court will be reversed and that of the common pleas affirmed, and an order directed for the execution of the judgment of the mayor of the city of Bellaire.

Reversed.

Davis, C. J., Shauck, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Lemert v. Lemert et al.

      Money decree for alimony — Not a provable claim under Banlcruptcy act — Does not become dormant, when.

    1. A money decree for alimony, rendered in a proceeding for divorce and alimony, is not a provable claim under the bankruptcy statute of the United States of July 1, 1898. Hence, a discharge in bankruptcy does not work a satisfaction of such decree.
    2. Such decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years.
    (No. 8711
    Decided May 2, 1905.)
    Error to the Circuit Court of Muskingum county.

      The issues of fact raised by the pleadings in this case present two questions of law, one with respect to the effect of a discharge in bankruptcy upon a decree for alimony, and another respecting the effect upon such decree of failure to issue execution for more than five years.
    It was found as matter of fact by the circuit court, where the cause was tried on appeal, “that the said Amelia Lemert on the twenty-third day of May, 1890, in an action then pending in the court of common pleas of Franklin county, Ohio, obtained a decree of divorce from said William S. Lemert, and said William S. Lemert. was ordered to pay said Amelia Lemert alimony in the sum of $1,000.00, payable one-third in cash, one-third in one year, and one-third in two years from the date of said decree, and execution was awarded therefor; that afterwards at various dates executions were issued and proceedings in contempt and attachment were had against said William S. Lemert under said decree; that more than five years have elapsed since the last execution was issued under said decree and before the issuing of the execution herein complained of; that on the--day of January, 1903, an alias execution was issued upon said decree to the sheriff of Muskingum county, Ohio, and levied on the real estate described in the petition, and that the sheriff of said county was proceeding to appraise, advertise and sell said real estate under said execution, when he was served with summons and notice herein.
    “That on the ninth day of June, 1900, plaintiff was discharged as a bankrupt by the district court of the United States for the southern district of Ohio in proceedings therein pending; that in said proceedings in bankruptcy the said claim of said Amelia Lemert was scheduled, and said Amelia Lemert was notified of said proceedings, hut took no part therein. ’ ’
    Thereupon the court rendered judgment dismissing the petition. Plaintiff brings error.

      Mr. A. J. Andrews, attorney for the plaintiff in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Belle Centre, 48 Ohio St., 273; Heckman v. Adams, 50 Ohio St., 305; Shroyer v. Richmond, 16 Ohio St., 455; Rowan v. Holcomb, 16 Ohio, 463; Brown v. Kroh, 31 Ohio St., 492; Howland v. Carson, 28 Ohio St., 625; Smith v. Ramsey, 27 Ohio St., 339; Rayl v. Lapham, 27 Ohio St., 457; Bartges v. Bartges, 1 O. S. C. D., 116; 23 W. L. B., 208; Fite v. Fite, 61 S. W. Rep., 26; Petersine v. Thomas, 28 Ohio St., 601; Howk v. Minnick, 19 Ohio St., 462; Lytle v. Manufacturing Co., 4 Ohio, 459; Mullane v. Folger, 10 Dec. Re., 485; 21 W. L. B., 277; Conrad v. Everich, 50 Ohio St., 480; State v. Cook, 66 Ohio St., 566; Simpson v. Hook, 6 C. C. R., 30; 3 Circ. Dec., 333; Wuest v. James, 51 Ohio St., 230; Smith v. Hogg, 52 Ohio St., 527; Miller v. Longacre, 26 Ohio St., 297; Darst v. Phillips, 41 Ohio St., 514; Handy v. Insurance Co., 37 Ohio St., 366; Elliott v. Lawhead, 43 Ohio St., 171; Smith v. Hoover, 39 Ohio St., 257.

      Mr. F. F. D. Albery and Mr. H. C. Wine, attorneys for defendants in error,
    cited and commented upon the following authorities:
    Loveland on Bankruptcy, form 59, 778; Audubon v. Shufeldt, 181 U. S., 575; Mullane v. Folger, 10 Dec. Re., 485; 21 W. L. B., 277; Gallagher v. Fleury, 36 Ohio St., 590; Bishop on Marriage and Divorce, secs. 1092, 1096; 25 B., 514; 23 B.; Kaderabek v. Kaderabek, 2 Circ. Dec., 236; 3 C. C. R., 419; State v. Cook, 66 Ohio St., 566; Tolerton v. Williard, 30 Ohio St., 579; Broadwell v. Broadwell, 21 Ohio St., 657; King v. King, 38 Ohio St., 370; Cox v. Cox, 20 Ohio St., 439; John v. John, 5 Circ. Dec., 535; 12 C. C. R., 328; Webster v. Dennis, 2 Circ. Dec. 566; 4 C. C. R., 313; Olin v. Hungerford et al., 10 Ohio, 268; Doyle v. West, 60 Ohio St., 438; N. B., 444; 1 Black on Judgments, sec. 462; Kinkead’s Practice, 567; Stewart on Marriage and Divorce, sec. 358; 2 Bishop on Marriage and Divorce, sec. 138; Beaumont, Jr., et al. v. Herrick, 24 Ohio St., 445; Moore v. Ogden, 35 Ohio St., 430; Rankin v. Hannan, 37 Ohio St., 116; Butt v. Maddox, 7 Ga., 495; Butler v. Butler, 33 Ga., 148; Conrad v. Everich et al., 50 Ohio St., 476; Lockwood v. Krum, 34 Ohio St., 1; sec. 5367, Rev. Stat.
   By the Court.

1. Was the decree for alimony discharged by the final discharge of the plaintiff in the bankruptcy proceedings, the claim not having been proven therein nor any' dividend paid thereon? The circuit court held that it was not discharged because the decree for alimony was not a provable claim in the bankruptcy proceeding. We think this conclusion was sound both upon reason and upon authority. Audubon v. Schufeldt, 181 U. S., 575; Dunbar v. Dunbar, 190 U. S., 340; Wetmore v. Markoe, 25 S. C. R., 172.

2. Did the decree for alimony become dormant because no execution had been sued out thereon within five years ? The circuit court answered this question in the negative. In this conclusion, also, we think the court was right. A decree for alimony is not a judgment within the meaning of section -5380, Revised Statutes, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding, within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding.

Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


author: Summers, J.

text:
    The Wheeling & Lake Erie Railroad Company v. Toledo Railway & Terminal Company. The Ann Arbor Railroad Company et al. v. Toledo Railway & Terminal Company.

      Corporation has primary discretion in determining land for appropriation, when — Proiate judge has jurisdiction over right of corporation to appropriate, when — Section 6420, Revised Statutes — Judge may dismiss petition for. appropriation, when— Injunction will not lie to prevent appropriation proceedings, when — Act of May 10, 1902 — Provision for steam railroad crossing another railroad — Proceedings as to enforcement of such right of crossing — Priority of proceeding — Law of corporation appropriation.

    J. While a corporation has primary discretion in determining what land is necessary for the purpose for which it is authorized to make appropriations, the probate judge has, under the jurisdiction vested in him by section 6420, Revised Statutes, to hear and determine the questions of the right of the corporation to make the appropriation, and the necessity for the appropriation, power to prevent abusé in its exercise, and, if upon such hearing he determines that the appropriation by the corporation will be an abuse of its corporate power- or destructive of the public use to which the land is already devoted, he may dismiss the petition, and, in these respects, there being an adequate remedy at law injunction does not lie on those grounds to prevent a prosecution of proceedings in appropriation.
    2. The act passed May 10, 1902, to provide for one steam railroad crossing another steam railroad is made to take effect and be in force from and after its passage, and being original legislation and not an amendment of a statute, section 79, Revised Statutes, does hot exempt pending actions or proceedings from its operation, and it is error for the court of common pleas to refuse to entertain a proper application under the act to ascertain and define the mode of such crossing on the ground that proceedings to appropriate the right to cross had been commenced prior to the passage of the act.
    (Nos. 8527 and 8660
    Decided May 2, 1905.)
    Error to the Circuit Court of Lucas county.
    May 6,1902, the Toledo Railway & Terminal Company, a railroad corporation building a railroad in the city of Toledo, commenced proceedings in the probate court of Lucas county to appropriate the right to cross with its railway tracks the railway tracks and right of way of the Wheeling & Lake Erie Railroad Company in three places; first, with its main line; second, with one of its spur tracks", both east of the Maumee river; and third, with one of its spur tracks west of the river. The jurisdictional questions were determined in favor of the expropriator and the verdict of the jurf assessing compensation and damages was confirmed. Thereupon, on November 24, 1902, the Wheeling & Lake Erie Railroad Company, plaintiff, brought the present suit in the court of common pleas of that county for an injunction to prevent the Toledo Railway & Terminal Company, the defendant, from taking possession of the property and from constructing one of said crossings. The petition is too lengthy to be set out and the following summary of it made by plaintiff’s counsel is sufficient.
    The first cause of action in the petition alleges: That the plaintiff owns and operates about four hundred miles of railroad, and that in the city of Toledo, its northern terminus, it has three yards, one on the west side of the Maumee river known as “Toledo” yard, and two on the east side of that river known respectively as “Homestead” and “Ironville” yards. These two yards are in close proximity to each other, “Ironville” yard lying to the west of “Homestead” yard, and the main track passing through each, thence on west to the “Toledo” yard, where are located plaintiff’s passenger and freight depots, and that a large number of trains pass through these yards daily. “Ironville” and “Homestead” yards have each a large number of tracks, which are all necessary to the proper discharge of plaintiff’s terminal business, and are used for the storage and distribution of cars coming into the city, to other railroads, industries and shippers, and to collect cars from such other railroads, industries and shippers and making them up into trains for points along the line of its road. In the “Iron-ville” yard are located the plaintiff’s general shops, also, repair tracks and a round house, all of which have connected therewith a large number of tracks which are in constant and necessary use daily.
    These yards have been constructed at a great cost, are an integral part of plaintiff’s railroad system, the unimpaired use of which is absolutely necessary for the proper discharge of plaintiff’s duties as a public carrier, and its increase of business has made it necessary to increase its facilities, and, prior to the acts defendant complains of, it acquired at great expense a large amount of property to enlarge its “Ironville” yard, and construct additional tracks and round house.
    It is further alleged that the defendant has instituted proceedings in the probate court to appropriate the right to cross with its track at grade, the tracks of the plaintiff at a point through the east end of the “Ironville” yard, and that at the preliminary hearing the court found in favor of the plaintiff in said proceeding all questions involved in said preliminary hearing, that the compensation and damages have been assessed by a jury, and that the defendant threatens to, and will, upon affirmance of the verdict, unless restrained, pay the money into the court, and proceed to enter, take possession, and construct, maintain and operate its railroad across the tracks of said “Ironville” yard.
    The petition then sets forth:
    “That the tracks in said yard are so located and constructed that in order to operate the same, and to sort out cars and make up trains, and in order to take cars to and from said round houses, shops, repair tracks and from its other yards, and for the purpose of taking cars and trains to and from other railroads, industries, docks and shippers in said city, and from the said ‘Homestead’ yard, it is necessary for the engines, trains and cars operated and handled by the plaintiff to constantly pass and repass over the point where the defendant seeks to and will construct its railroad tracks unless restrained by the order of this court, and that if the defendant is permitted to construct, maintain and operate its said tracks at said point at grade, the plaintiff will be greatly obstructed, hampered and interfered with in the use of said yards, the operation thereof will be «dangerous to life and property, and as a result thereof the said yards, and especially said ‘Ironville’ and ‘‘Homestead’ yards, will be practically destroyed and unfitted for the uses to which they are now devoted.”
    The plaintiff further alleges that it is unnecessary to cross said yard at grade, and it is practicable and feasible for the defendant to carry its line of road -over the tracks of plaintiff by an overhead crossing, which will not in any way impair its usefulness, nor materially increase the cost of construction, and would not materially interfere with the operation of plaintiff’s tracks and yard, and that to induce said defendant to construct said overhead crossing, the plaintiff offered to contribute to the expense thereof the sum of twenty-five thousand dollars.
    For a second cause of action the plaintiff averred that it had, on the twenty-seventh day of May, 1902, «commenced an action in the court of common pleas of that county against the defendant, and that in its petition in said action further alleged that the defendant, The Toledo Railway & Terminal Company, had located its line of railroad so that the same should cross at grade the line of railroad of this plaintiff at the point or place hereinbefore described and within the limits of said ‘Ironville’ yard, and that said crossing, if permitted to be constructed, would cross five tracks of the plaintiff, forming an integral part of said yard, and which were in constant and daily use and absolutely necessary in order to use the yard for the purposes to which it was and for a.long time theretofore has been devoted; and that such crossing, if permitted, would result in a practical destruction of the uses to which plaintiff has devoted its property at said point, and greatly and materially impair the uses to which plaintiff devoted the balance of its said ‘Ironville’ yard,"; would interfere with the plaintiff’s use of its ‘Homestead’ yard and render the operation of its terminal facilities, as well as its main line of railroad at said point, extremely dangerous.
    “It was further alleged in said petition that said grade crossing was unnecessary, inasmuch as it was perfectly practicable and reasonable for defendant to cross the tracks of the plaintiff at said point either overhead or undergrade, without interfering with the operation of its line of railroad, and that such manner of crossing would inflict less injury to> the plaintiff than the crossing proposed by the defendant.
    “It was further alleged in said petition that the plaintiff was unable to agree with said defendant as to the manner in which the said crossing should be constructed.
    “Plaintiff prayed in said petition that said court should ascertain and define by its decree the mode of crossing by the defendant which would inflict the least injury upon the plaintiff, and that if in the judgment of the court it was reasonable and practicable to avoid a grade crossing, that the court should prevent by its decree such crossing at grade and issue an injunction restraining the defendant from constructing, maintaining and operating a crossing at grade as proposed by it.”
    It is further averred that said action is still pending and that no hearing has been had or any order been made therein, and that' at said preliminary hearing in the probate court due proof was made of the pendency of said action and of the prayer of the petition, and that notwithstanding the same the probate court proceeded.
    It is unnecessary to state the answer and reply for the reason that on the trial on appeal in the circuit court that court refused to receive any evidence and dismissed the petition on the ground that it does not state a cause of action.
    In the second case, on May 9, 1902, the Terminal Company commenced proceedings in the probate court of Lucas county to appropriate the right to construct several crossings over the Ann Arbor Railroad in the city of Toledo, the Pere Marquette Railroad Company being made a party because it has by agreement a right to use the tracks of the Ann Arbor Company. On September 25, 1902, The Aun Arbor Railroad Company and The Pere Marquette Railroad Company, plaintiffs, brought the present suit in the court of common pleas against The Toledo Railway & Terminal Company, defendant, to enjoin it from prosecuting the appropriation proceeding. The averments of the petition are to the effect that one of the crossings sought to be appropriated is located at grade across four tracks of plaintiff’s road, three of which connect two of its yards; that such appropriation will irreparably injure the plaintiff; that it is not necessary for defendant to cross at that particular place, and other places are specified where, it is averred, the defendant could cross without impairing the usefulness of its road or materially increasing the cost of its construction and without serious injury to plaintiff’s property, and the prayer is that the defendant be restrained from prosecuting said proceeding to appropriate and from constructing a crossing at that particular place, and that if on final hearing it should be determined that it is reasonably necessary and that the defendant has the right to cross at that particular place, that it be restrained from the further prosecution of said appropriation proceeding until the mode and manner of crossing has been fixed by the decree of the court of common pleas.
    The court of common pleas and the circuit court each refused to receive any evidence and dismissed the petition on the ground that it did not state a cause of action.

      Messrs. Squire, Sanders & Dempsey; Messrs. Smith & Beckwith; Messrs. Seiders & Monnette; Mr. Chas. A. Seiders and Mr. Alexander L. Smith, attorneys for The Wheeling & Lake Erie Railroad Company, plaintiff in error, and Messrs. Smith & Beckwith; Messrs. Swayne, Hayes, Fuller & Tyler, attorneys for The Ann Arbor Railroad Company, and The Pere Marquette Railroad Company, plaintiffs in error,
    cited and commented upon the following authorities:
    Act of February 11, 1848; 2 Curwen, 1394; act of May 1. 1852 (50 v. 274; 3 Curwen, 1877; S. & C., 281); act of April 30, 1852 (50 v. 201; 3 Curwen, 1818; S. & C., 311); Railroad Co. v. Sullivant et al., 5 Ohio St., 276; Atkinson et al. v. Railroad Co., 15 Ohio St., 21; Railroad Co. v. Smith, 15 Ohio St., 333; Powers v. Railroad Co., 33 Ohio St., 429; act of April 23, 1872 (69 O. L., 88); act of March 23, 1875 (72 O. L., 71); act of May 14, 1878 (75 O. L., 597); Bridge Co. v. Magruder et al., 63 Ohio St., 475; In re Railroad Co. and DeVeaux College, 108 N. Y., 375; sec. 5, art. 13, Const.; act of March 14, 1853 (51 O. L., 167; 3 Curwen, 2014); Giesy v. Railroad Co., 4 Ohio St., 308; Railway Co. v. Ohio Postal, etc., Co., 68 Ohio St., 306; Lewis on Eminent Domain, secs. 158, 268, 613; High on Injunctions, secs. 15, 66; Bates on Federal Equity Procedure, sec. 10; Zanesville v. Telegraph Co., 61 Ohio St., 67; Elliott on Railroads, sec. 1125; Railroad Co. v. Railroad Co., 6 Biss., 219; 5 Fed. Cas., 590; Railroad Co.’s Appeal, 6 Atl. Rep., 564; Hickok v. Hine, 23 Ohio St., 523; Railroad Co. v, Dayton, 23 Ohio St., 510; Railroad Co. v. Belle Centre, 48 Ohio St., 273; Railroad Co. v. Greenville, 1 O. L. R., 961; 69 Ohio St., 487; Dutoit v. Doyle, 16 Ohio St., 405; Brower v. Hunt, 18 Ohio St., 312; State ex rel. v. Shelby County, 36 Ohio St., 326; State ex rel. v. Brewster, 11 Ohio St., 219; Ashtabula, etc., Ry. Co. v. Smith; 15 Ohio St., 333; State ex rel. v. Judge, 19 O. L. B., 63; 69 Ohio St., 372; art. 17, sec. 2, Const, of Mich.; Tedens v. Sanitary District, 119 Ill., 87; Railway Co. v. Railway Co., 30 Ohio St., 604; secs. 524, 3281, 3459 and 6420, Rev. Stat.

      Messrs. King & Tracy; Messrs. Hamilton & Kirby; Messrs. Brown, Geddes, Schmetteau & Williams, and Messrs. Doyle & Lewis, attorneys for The Toledo Railway & Terminal Company, defendant in error,
    cited and commented upon the following authorities:
    Act of February 11, 1848; act of April 30, 1852 (S. & C., 311); act of May 1, 1852; 1 S. & C., 272; Railroad Co. v. Sullivant, 5 Ohio St., 276; Powers v. Railroad Co., 33 Ohio St., 429; act of April 23, 1872; Railroad Co. v. Dayton, 23 Ohio St., 510; Railroad Co. v. Belle Centre, 18 Ohio St., 273; Railway Co. v. Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 363; Giesy v. Railroad Co., 4 Ohio St., 326; Railway v. Railway, 30 Ohio St., 604; 1 Lewis on Eminent Domain, 268; Railroad Co. v. State, 53 N. J. Law, 217; Shroyer v. Richmond, 16 Ohio St., 455; Slagle v. Entrekin, 11 Ohio St., 637; Woodward v. Curtis, 10 Circ. Dec., 400; 19 C. C. R., 15; Railroad v. Detroit, 91 Mich., 445; Turnpike Co. v. Railway Co., 15 Md., 198; Railroad Co. v. Railroad Co., 57 Md., 267; Railroad Co. v. Railroad Co., 17 W. Va., —; Smith v. Railroad Co., 150 Ill., 511; Railroad Co. v. Wiltse, 116 Ill., 449; Tedens v. Sanitary District, 149 Ill., 87; Hickok et al. v. Hine, 23 Ohio St., 523; Railroad v. Lowell & Lawrence, 124 Mass., 368; In re City of Buffalo, 68 N. Y., 167; 7 Ency. of Pl. & Prac., 534; Railway v. Railroad, 97 Ill., 506; Railway v. Railway, 108 Ill., 265; Railway v. Ohio Postal, etc., Co., 68 Ohio St., 306; act of May 10, 1902; Van Wert v. Webster, 31 Ohio St., 420; Railroad v. Railroad, 16 Mont., 550; Railroad Co. v. Railroad Co., 118 Mo., 599; Railroad Co. v. Drummond, 17 Vroom, 644; State v. Tunnel Co., 9 Vroom, 548; Railroad Co. v. Railroad Co., 92 Tex., 162; Bernier v. Becker, 37 Ohio St., 72; State v. Hamilton County, 3 Circ. Dec., 294 (5 C. C. R., 602); State ex rel. v. St. Louis Co. Court, 38 Mo., 402; Champlin v. Bakewell, 21 La. Ann., 353; Kelley v. Kelso, 5 Ohio St., 198; Merwin v. Ballard, 66 N. C., 398; Jones v. Howells, 8 Dec. Re., 127 (5 W. L. B., 851); Samish River Co. v. Union Boom Co., 32 Wash., 586; Railway Co. v. Railway Co., 32 L. R. A., 298; Railroad Co. v. Railroad Co., 56 Fed. Rep., 697; Hoagland Co. v. City, 31 N. J. Eq., 461; In re Minneapolis Railroad Co., 39 Minn., 162; act of March 23, 1875; Bridge Co. v. Magruder, 63 Ohio St., 455; 1 S. & C., 277; State ex rel. v. Judges, 49 O. L. B., 63; 69 Ohio St., 372; In re Railroad Co., 34 Minn., 227; In re Railroad Co. v. Davis et al., 43 N. Y., 137; In re Application of Railroad Co., 66 N. Y., 407; Water Works v. Water Works, 64 Cal., 123; Pomeroy on Equity Jurisprudence, sec. 1361; Railway Co. v. Tel

      egraph Assn., 48 Ohio St., 390; Elliott on Railroads, sec. 1125; Railroad Co. v. Railroad Co., 6 Biss., 219; 5 Fed. Cas., 590; United Companies v. National Docks et al., 52 N. J. Law, 90; Railroad Co. v. State, 53 N. J. Law, 217; Railroad Co.’s Appeal, 6 Atl. Rep., 564; Railroad Co. v. Greenville, 69 Ohio St., 487; secs. 524, 3281, 3459, 6414, 6416, 6420 and 6421, Rev. Stat.
   Summers, J.

In the first case the first cause of action is grounded upon the absence of an adequate remedy at law. The contention on the part of plaintiff, as we understand it, is that the right sought to • be appropriated is inconsistent with and destructive of plaintiff’s right; that the use to which defendant seeks to subject the property will be subversive of the use made of it by plaintiff and that inasmuch as that use is public, that particular property is not subject to appropriation, and the probate judge having no jurisdiction to determine what property may be taken, is without authority to determine the question of inconsistent public uses. The argument then proceeds to the effect that prior to the act of 1872 (69 O. L., 88), in which it was provided that the probate judge shall determine the questions of the corporate existence of the corporation, its legal right to make appropriations of private property under the act, its inability to agree with the owner of the property sought to be appropriated, and the necessity of the appropriation, this court had ruled that the right of such a corporation to appropriate private property depends upon a showing of its corporate existence and its legal right to make appropriation of private property; that the former was shown by its certificate of incorporation and the latter by proof of its organization; that this was the legal signification of these words before the passage of the act and that they must be understood as so used in the act; that the question of the necessity of the appropriation does not involve the determination of the necessity of taking the particular property sought to be appropriated, but is limited to whether the particular railroad is for a public or for á private purpose.

In the second case the petition is grounded upon the assumption that the probate court is without jurisdiction to determine the necessity of appropriating the right to cross at the particular place at which the right is sought, and that an appropriation of the right to cross at that particular place would be, under the facts stated, an oppressive and unjustifiable use of its corporate power by the defendant, which a court of equity may prevent. And the contention of counsel, while in line with that of counsel in the first case as to the legal signification of certain of the jurisdictional questions yet, as to the question of necessity, is that it is within the political power entrusted to the general assembly, and that it may not delegate it to the judiciary; that in requiring the probate judge to determine the necessity for the appropriation the legislature intended only that he should determine that the proposed taking is for a real bona fide public use.

Conceding that the signification of the question of corporate existence and of the question of legal right is to be ascertained by reference to the decisions of this court prior to the act of 1872, is it not probable that the submission.of the question of the necessity of the appropriation to the determination of the probate judge was but the adoption of the suggestion of an eminent judge of this court? In Giesy v. The C. W. & Z. R. R. Co., 4 Ohio St., 326, decided prior to 1872, Ranney, J., suggested that to him it would seem “much more consistent with a proper regard for private rights, that the question of necessity as well as compensation should here, as in England, be determined by some impartial public tribunal.” To what the judge referred does not clearly appear from an examination of the act of 1845, 8 Vic., Oap. 18 and 20, and the decisions shortly subsequent thereto.

The right of eminent domain is the right to take private property for a public use. Whether or not the use is public is a judicial question, and the use being public the right is absolute in the general assembly, unless restricted by the constitution, and it is entirely in its discretion whether it is necessary to take property for such use, that is, whether the public welfare requires or will be promoted by such taking. It may determine the public necessity of taking property for a public use and confer the power to take for such use upon corporations or individuals or it may confer the power to take subject to the determination by some other authority of the necessity of the particular improvement for which the property is sought or of taking the whole or any part of the particular property sought to be taken.

Mr. Lewis in his work on Eminent Domain, sec. 393, says: ‘ ‘ The question of necessity in condemnation proceedings presents itself in various aspects.” And he states five. The fourth and fifth he states as follows and cites many illustrative cases: -“Fourth, it may be objected that there is no necessity of condemning the particular property, because some other location might be made or other property obtained by agreement. But this objection is unavailing. Except as specially restricted by the legislature, those invested with the power of eminent domain for a public purpose, can make their own location according to their own views of what is best or expedient, and this discretion cannot be controlled by the courts. . Fifth, the question of necessity may arise under general grants of power which expressly or by implication limit the right to such and so much property as may be necessary for the proposed purpose. If the legislature designates how much may be taken, the courts cannot interfere, except to prevent an abuse of the power. * * * But, when the statute does not designate the property to be taken, nor how much may be taken, then the necessity of taking particular property is a question for the courts. Where the application to condemn is made directly to a court, the question should be raised and decided in limine.”

In a note to Lynch v. Forbes, 42 Am. St. Rep., 402, 407, Judge Freeman says:

‘ ‘ The legislature has, however, very rarely undertaken to designate the precise property which should be taken for any public use, but has generally, as in the statute under consideration in the principal case, merely conferred authority to take for the public use the lands or real estate necessary therefor. Under statutes of this character, the courts, so far as we are aware, with the single exception of those in Massachusetts, have regarded the allegation of a necessity for the taking as an issuable one, which it was not competent for the plaintiff, or person, or corporation seeking the condemnation to determine, and have permitted the person whose property wae to be taken to litigate this question, and to defeat the proposed appropriation so far as it appeared to be unnecessary. There are doubtless many instances in which it may be exceedingly difficult to determine whether or not the whole of the property sought to be acquired is necessary for the use for which it is sought to be taken, and perhaps in these cases the courts may hesitate to overrule the judgment of the corporation or other body authorized to acquire property for the public use. Whether this be true or not, it is affirmed by an almost overwhelming preponderance of the authorities that the rule apparently asserted in the principal case cannot be sustained, and that, where the legislature has only authorized the taking of such property as is necessary, the question of the necessity for taking is a judicial one which must be determined either by a court, jury, or some quasi-judicial tribunal designated in the statute.”

In Illinois, although there is no statutory provision making the question of necessity a question for the courts, the court holds that the question may be made and that while a railway company is vested with a large discretion to determine the land necessary for its purposes, yet it is subject to the power of the courts to prevent an abuse of it. O’Hare v. C. M. & N. R. R. Co., 139 Ill., 154.

“The Sanitary District of Chicago, under the power conferred upon it by the legislature, when proceeding to condemn lands for the purpose for which it was organized, must, of necessity, to a modified extent, be allowed to determine for itself the quantity of land to be taken for its ditches or channels.

“This right is subordinate to all statutory and constitutional restrictions, and also the further limitation that the courts of the state which are authorized to entertain applications to condemn, are clothed with ample power to prevent any abuse of the right." Tedens et al. v. Sanitary District, 149 Ill., 87.

In In re St. Paul & N. P. Ry. Co., 34 Minn., 227, 230, it is said: “Whether, however, the use for which lands are sought to be taken, in such cases is a public use, and whether they are reasonably necessary or required therefor by the corporation, or whether a proposed public use would be inconsistent with or subversive of-a prior public use to which particular lands sought to be appropriated had already been dedicated, — these are undoubtedly questions for the court, and, so far as the determination thereof may affect the prosecution of a proposed enterprise, it will to that extent, be únder the control of the court."

In England the practice seems to be to apply to a court of equity to enjoin a company from appropriating land not necessary for its road. Flower v. The London, Brighton & S. C. Ry. Co., 34 L. J., 540; S. & D. Ry. Co. v. Brown, 9 H. L., 246. And in the latter case Lord Cranworth says: “Some general propositions admit of no doubt. In the first place, I think it clear that when the legislature authorizes railway directors to take, for the purposes of their undertaking, any lands specially described in their act, it constitutes them the sole judges as to whether they will or will not take those lands; provided only that they take them bona fide with the object of using them for the purposes authorized by the legislature, and not for any sinister or collateral purpose. This is the construction to be put on all such legislative powers, w*hether the language of the act is that the company may take so much of the lands as is necessary for the undertaking, or so much as is required or is expedient to be taken, or simply (as in this case) that the company may take lands for the purposes of the undertaking. In such cases, the legislature, having provided what it considers sufficient means for securing adequate compensation to the owners of the.land, leaves it to those interested in the undertaking to say to what extent it will be useful to them to exercise their statutable powers.

“This principle, founded in good sense, has been sanctioned by authority in more than one decided case. ’ ’

Applying this principle it is very doubtful if the petition in either case states a cause of action, but, be this as it may, we do not think the legislature intended in requiring a determination of the necessity of the appropriation as a condition precedent to the right to appropriate to provide for a determination of the necessity of the improvement or* merely that the -particular land was sought for the use of the corporation. And while it may not be best to attempt to determine the meaning of that question it is at least apparent that it was intended thereby to so regulate or limit the exercise of the power as to prevent its abuse and no reason is apparent why the question sought to be raised in these actions might not better be made in the appropriation cases.

We have so far proceeded upon the assumption that the meaning of the jurisdictional question of the legal right of the corporation to make the appropriation must be ascertained by reference to the cases decided prior to the passage of the act of 1872, but we do not wish to be understood as so holding. Prior to the act of 1852 appropriations had been infrequent, but there were many prior to the” act of 1872, and experience may have shown the desirability of imposing upon the probate judge the duty to determine,- prior to empaneling a jury, the right to appropriate and the necessity of the particular .appropriation, and there are many reasons why the •court, having original jurisdiction of the appropriation, should have and many why it should not be held not to have authority to determine every question that properly may be determined in such a proceeding.

Independently of the signification of any of the so-called jurisdictional questions, it is not apparent that the jurisdiction of the probate court is limited to a determination of these questions. The fact that the legislature has seen fit, from considerations of convenience or otherwise, to require the probate judge to determine these questions in limine does not necessarily make applicable the maxim expressio unius est exclusio alterius.

There is another consideration not to be overlooked. A railroad corporation, as is shown in Railway v. Railway, 30 Ohio St., 604, does not hold an absolute right in property acquired for its right of way, but takes it by permission of the state and holds it subject to the power of the state to grant the right to cross it for public uses to another. So that it would not follow that a court of equity has jurisdiction because of the want of an adequate remedy at law, but rather that the remedy is the measure of the'right, and that in the absence of a remedy there is no right other than a right to compensation for the property appropriated, as in the case of individuals.

On May 10, 1902, the legislature passed an act, a copy of which is as follows: “An act to provide for one steam railroad crossing another steam railroad. Be it enacted by the general assembly of the state of Ohio: Sec. 1. Where it becomes necessary for the track of one railroad company to cross the track of another railroad company, unless the manner of making such crossings shall he agreed to between such companies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed; and if in the judgment of such court or such judge thereof it is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade.

“Sec. 2. This act shall take effect and be in force from and after its passage.” (95 O. L., 530.)

The second cause of action, referring to this act and asking the court to ascertain and define by its decree the mode of crossing and also averring that the court had been, in a proceeding commenced on May 27, 1902, before the termination of the appropriation proceeding in the probate court, asked to define the mode of crossing, was considered not to state a cause of action presumably because of section 79 of the Revised Statutes, which provides that whenever a statute is repealed or amended such repeal or amendment shall in no manner affect pending actions or proceedings, and when the repeal or amendment relates to the remedy it shall not affect pending actions or proceedings unless so expressed, and for the same reason presumably, in the second ease the court refused to entertain the application to define the mode of crossing when it found that the petition did not state a cause for injunction on other grounds. But it is to be observed that this act was neither a repeal nor an amendment of a statute but original legislation declared to be in force from and after its passage, and, if valid, the court should have-stayed proceedings in the probate court, and if in its judgment it was reasonable and practicable to avoid a grade crossing, it should have given effect to the commendable policy of the legislation by preventing a crossing at grade.

We have considered the appropriation cases referred to in the statement of facts and find no prejudicial error, unless it shall be found that it is reasonable and practicable to avoid the grade crossings, and judgments in those cases will not be entered at present, but the judgment of the circuit court in each of the cases under consideration is reversed, and each ease is remanded to that court to ascertain and define by its decree the mode of crossing, as provided in said act of May 10, 1902, and such further proceedings as may be authorized by, law, and when advised of such decrees, if it appear that the mode of crossing therein ascertained and defined is the same as the right appropriated, the judgments in the appropriation cases will be affirmed, and if such mode of crossing is not the same, the judgments will be reversed and the cases remanded for further proceedings.

Judgments reversed.

Davis, C. J., Shauck, Price. Crew and Spear, JJ., concur.


author: Crew, J.

text:
    Mick v. The State of Ohio.

      Right of state to prosecute error in criminal case — Must, be expressly conferred by statute — Defendant convicted before justice of the peace — Conviction reversed by common pleas court — Section 7356, Revised Statutes — Does not authorize circuit court to review action of common pleas, when — Criminal law.

    1. The right of the state to prosecute error in a criminal case exists only when such right is expressly conferred by statute.
    2. Where a defendant in a criminal case is tried and convicted before a justice of the peace, and thereafter such judgment of conviction is reversed by the court of common pleas and the defendant discharged, section 7356, Revised Statutes, does not authorize the circuit court, upon petition in error filed by the state in that court, to review the action of the court of common pleas in reversing said judgment of conviction.
    (No. 8995
    Decided May 2, 1905.)
    Error to the Circuit Court of Licking county.
    The record in this case shows that the "plaintiff in error, John B. Mick, was arrested and prosecuted before a justice of the peace of Newark township, Licking county, Ohio, upon the criminal charge of cruelty to an animal, to-wit: a 4‘Great Dane dog,” in violation of section 6951, Revised Statutes of Ohio. When arraigned Mick entered a plea of not guilty, waived Ms right to a trial by jury and consented to be tried by the justice. A trial was had and Mick was found guilty by the justice and sentenced to pay a fine of twenty-five dollars and the costs of prosecution, and an order was made that he stand committed to the jail of Licking county, Ohio, until said fine and costs were paid or secured to be paid, or until he should be otherwise legally discharged. A motion for new trial was made and overruled, a bill of exceptions taken and error duly prosecuted by Mick to tbe court of common pleas of said Licking county. The court of common pleas reversed tbe judgment of tbe justice of tbe peace and discharged tbe plaintiff in error, tbe entry made in tbe common pleas being as follows:
    “This day this cause came on to be beard upon tbe petition in error, tbe transcript, bill of exceptions and papers attached thereto, and was argued by counsel.
    “On consideration whereof, tbe court being fully advised in tbe premises, finds, that t|iere is error in tbe record and proceedings before said justice of tbe peace, prejudicial to tbe plaintiff in error in this, to-wit :
    “First: That tbe judgment of tbe justice of tbe peace is not sustained by evidence, and is against its clear weight.
    “Second: That tbe judgment of tbe said justice of tbe peace is against tbe law of the case.
    “Third: That said justice erred in overruling tbe motion of defendant below for a new trial.
    “Fourth. That tbe affidavit before tbe justice of tbe peace upon which tbe plaintiff in error was arrested and tried is insufficient in law to charge any offense under tbe statute of Ohio against tbe plaintiff in error.
    “That for tbe errors aforesaid, it is ordered that tbe judgment of said justice of tbe peace be and it is reversed and held for naught, and that the plaintiff in error be discharged, and it is ordered that this cause be remanded to tbe justice of tbe peace, for bis order as to costs.
    “To all of which tbe defendant in error excepts.”
    Thereupon tbe State filed a petition in error in tbe circuit court, and that court reversed tbe judgment of reversal entered by tbe common pleas, affirmed tbe judgment of the justice of tbe peace, and remanded said cause to tbe justice’s court with instructions to carry tbe judgment and sentence of said justice into effect and execution. Tbe plaintiff in error, John B. Mick, having first obtained leave of this court, files bis petition in error herein asking a reversal of this judgment of tbe circuit court and an affirmance of tbe judgment of tbe court of common pleas.,

      Mr. S. L. James and Messrs. Kibler & Kibler, for plaintiff in error.

      Mr. B. G. Smythe and Mr. A. A. Stasel, for defendant in error.
   Crew, J.

Tbe only question presented in this case necessary for our determination, is whether tbe circuit court by virtue of tbe proceeding in error instituted in that court by and on behalf of tbe state, thereby acquired jurisdiction to review tbe action of tbe court of common pleas, which latter court bad reversed tbe judgment of conviction theretofore rendered by tbe justice of tbe peace against tbe plaintiff in error herein, John B. Mick, and bad discharged tbe accused from custody. Tbe question thus presented would seem to us, in tbe light of tbe authorities generally, and tbe former decisions of this court in particular, to admit of but little argument. In tbe absence of a statutory rule to tbe contrary, it is undoubtedly tbe well settled, if not tbe universal American doctrine, supported by a consistent and uniform line of decisions, that in a criminal case, tbe state is without right or authority to appeal or prosecute error, from a judgment in favor of tbe accused. Error may be prosecuted by a defendant in a criminal case, but not against him, unless authority so to do be expressly allowed or conferred by statute. In the case of the United States v. Sanges, 144 U. S., 310, Mr. Justice Cray, after an extended review of tbe decisions upon this question by the courts both of England and this country, says: “But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority, that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by the court of a question of law. ” In this state the only authority or jurisdiction conferred upon the circuit court to review a judgment rendered or final order made in a criminal case, is that conferred by section 7356, Bevised Statutes, which section provides as follows: “In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court; a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other case involving the constitutionality or construction of a statute, may be reviewed by the Supreme Court, but the Supreme Court shall not in any criminal cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.” The right to prosecute error being a right that exists only when conferred by statute, ■unless by force of the provisions of above section 7356, Revised Statutes, the right is expressly given to the circuit court, upon petition in error filed by the state, to review a judgment of the court of common pleas reversing a judgment of conviction rendered by a magistrate in a criminal case, then no such right of review by the circuit court exists. That this section confers upon the circuit court any such right, jurisdiction or authority, was expressly denied by this court in State v. Simmons, 49 Ohio St., 305. In that case the court had before it the question of whether the state, under favor of section 7356 could, in a criminal case, prosecute error and have reviewed in the circuit court a judgment rendered by the court of common pleas adverse to the state. In construing and interpreting this' section — 7356,—the court in that case says: “If the language of that section, ‘a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court, ’ is to be taken without limitation, then, upon an acquittal of the defendant, the state might claim the right of review, in violation of the constitutional rule, that no person shall be twice put in jeopardy for the same offense. But no such interpretation can be given to that language; and when, in the clause immediately following, there is designated what decisions of the. circuit court, the Supreme Court may be called upon to review, the language 'is, ‘a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor,’ thus indicating a proceeding in behalf of the defendant, and not for the state that has secured the conviction.

“Upon an examination of the sections of the statute regulating proceedings in error in criminal cases —sections 7356 to 7367, inclusive — it will be seen, that no provision bas been made for tbe filing of a petition in error by the state. Section 7358 provides that tbe proceedings to review a judgment in a criminal case shall be by a petition in error; and by section 7359, when sucb petition is filed in any court, a summons in error is to be issued, commanding notice to be given to the prosecuting attorney, and if issued from tbe Supreme Court, a copy thereof is to be forwarded to tbe attorney general; and by section 7362, provision is made for suspending tbe execution of sentence while proceedings in error are pending— thus manifesting that the statute contemplates a review of tbe judgment or final order, not in behalf of tbe state, but in behalf of tbe defendant. We are entirely satisfied that tbe interpretation thus given to section 7356, is 'the correct interpretation, and certainly it is in accord with tbe accepted practice thereunder in this state. ■ This statute being itself silent as to .who may invoke tbe jurisdiction or aid of tbe courts therein named, for tbe purpose of having a judgment or final order reviewed in a criminal case, if it be conceded, that tbe language employed in said section is sufficiently broad and comprehensive, if taken and considered without limitation, to confer this right equally upon the state and the defendant, yet it is perfectly obvious, we think, that this generality of meaning is so far restricted and qualified by subsequent provisions as by clear and necessary implication to limit sucb right to tbe defendant only. In Ohio, tbe only jurisdiction or authority conferred upon any court to review , or reverse a decision or judgment rendered in favor of tbe accused in a criminal case, is that conferred upon tbe Supreme Court by sections 7303 to 7308, Revised Statutes, inclusive, and except as provided in section 7306®, —which section is without importance or application in the present case, — the procedure to obtain such review is not by petition or proceeding in error, but upon a bill of exceptions taken and presented to this court by the prosecuting attorney. Upon the hearing of such exceptions this court is without right to disturb or reverse the judgment or decision rendered in favor of the accused in the court below, it being expressly provided by section 7308 that: “The judgment of the court in the case in which the bill was taken shall not be reversed, nor in any manner affected; but the decision of the Supreme Court shall determine the law to govern in any similar case.”

We are of opinion, therefore, that in this case, the circuit court was without jurisdiction to review or reverse the judgment rendered in favor of the plaintiff in error by the court of common pleas, and the judgment entered by the circuit court will therefore be reversed.

Judgment of the circuit court reversed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.