author: Jones, J.

text:
    The Board of County Commissioners of Franklin County v. Darst.

      Guard, rails for county bridges, etc.—Duty of county commissioners— Section 7563, General Code — No liability on county for negligence, when—Damages.

    1. Section 7563, General Code, imposes an absolute duty upon the board of county commissioners, requiring the erection of guard rails at the heights designated therein. When this duty has been performed there is no liability imposed upon the county under said section for negligence or for failure to use ordinary care in the erection of guard rails on other parts of an approach or embankment.
    2. Unless provided by statute, there can be no liability for negligence against the board in their gMewi-corporate capacity. The duty imposed by said section is not limited by the discretion of the board, nor subject to the contingency that necessities may or may not require the erection of guard rails at particular points on such approach.
    3. Such section requires the board to erect guard rails on each side of every embankment or approach to county bridges only at such points where the embankment or approach is more than six feet high; and for a failure to comply with the requirement of that or the succeeding section, the county may be held liable for damages resulting from such failure.
    (No. 15307
    Decided April 3, 1917.)
    Error to the Court of Appeals of Franklin county.
    This action is one for personal injuries sustained by the defendant in error, Oscar L. Darst, and arose out of the alleged failure of the county commissioners to erect and maintain guard rails on the west side of the north approach to the Lockbourne road bridge in Franklin county. This bridge spans an abandoned canal at right angles, and forms a continuation of the county road running north and south. At the north end of the bridge, and for a distance of ten feet therefrom, the height of the embankment or approach is more than six feet, but from a point on the county road ten feet north of the end of the bridge the road forms a gradual declining grade until it approaches the ground-level at a point considerably more than forty feet from the north end of the bridge. Neither guard rail nor hedge fence had been erected on either side of the north approach to said bridge.
    The defendant in error and one Kile were riding in a buggy at night and were proceeding in ■ a southerly direction along the county road. In the vicinity of this bridge, and at a point varying from twenty to forty feet from the north end of the bridge, Kile, who was driving, veered to the west and left the highway, and, after driving but a short distance, plunged over a shelving wall which constituted part of the abutment and which extended westerly from the approach. At the point where the vehicle left the county road the embankment sloped westerly from the road to a point about two feet below its level.
    These facts having developed on the trial deféndant below, at the conclusion of the evidence, renewed a motion formerly made for an instructed verdict. Although requested by defendant below the court refused to give the following special charge to the jury: “If you find that the horse and buggy were driven off the approach to the bridge, then I charge you that unless you find that said approach or embankment at the place where the horse and buggy was driven off the same was more than six foot high, your verdict must be for defendant.”
    In its general charge the court said to the jury that if they found “that the horse and buggy in question in which the plaintiff was riding went off of the approach to this bridge at a point where it would have been dangerous or calculated to produce personal injury either to the person or to property, why, then, it was the duty of the defendant to have erected guard rails there under the provisions of the statute.” He also charged in that connection that if the buggy departed from the highway “at a point where it was not necessary in order to preserve the lives or property of persons using the highways to have the same guard rails placed thereon, why in that event, there would be no liability.”
    In the court of common pleas the verdict and judgment were in favor of the plaintiff, and that judgment was affirmed by the court of appeals. Upon order of this court the case was certified here for review.

      Mr. Robert P. Duncan, prosecuting attorney, and Mr. William J. Ford, assistant prosecuting attorney, for plaintiff in error.

      Mr. Will J. Hays and Messrs. Thomas & Hays, for defendant in error.
   Jones, J.

The following legal principles have been established by the decisions of this court: That the board of county commissioners are not liable at common law in their quasi-corporate capacity for damages resulting from negligence in the performance of their official duties; that in order to impose such liability for failure to perform official functions of this character, the state, by legislative enactment, must fix the terms and the measure of liability for official delinquencies; and, further, that statutes imposing such liability, being in derogation of the common law, are not to be extended beyond the plain meaning of their terms. Commissioners of Hamilton County v. Mighels, 7 Ohio St., 110; Commissioners of Mor gan County v. The Marietta Transfer & Storage Co., 75 Ohio St., 244, and Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474.

In the interpretation of a statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition.

This action was predicated upon the failure of the board of county commissioners to comply with the following provisions of Section 7563, General Code (89 O. L., 358) : “They [the board of county commissioners] shall also erect or cause tó be erected, where not already done one or more guard rails on each side of every approach to a county bridge, viaduct or culvert if the approach or embankment is more than six feet high.”

It is the contention of the board of county commissioners that by virtue of the provisions of this section the county is liable for failure to erect guard rails only at points of the approach or embankment where the same is more than six feet high. The claim of counsel for defendant in error, however, is that this statute extends the liability of the county to the entire length of the approach, if any part of it is more than six feet high. But if this view should not be sustained, they further maintain that if any part of the approach or embankment is more than six feet high the county commissioners are invested with a certain discretion as to how much of the approach should be protected by guard rails, and that if there be any point in the approach that is dangerous or calculated to produce injury it is the duty of the commissioners to erect guard rails at such point, and a failure to do so would render the county liable. This latter view was manifestly taken by the trial court, for in that connection it charged the jury “that if the necessities would require the entire approach to that bridge to have guard rails placed upon them in order to obviate injuries to persons lawfully using the highway at that point, why then it would be the duty of the commissioners to construct guard rails along the entire approach to the bridge.” In so charging the court erred. The duty imposed on the board by Section 7563, General Code, is absolute, not relative. It is not limited by the discretion of the board, nor is it subject to the contingency that the necessities may or may not require the erection of guard rails at particular points on the approach; nor is the duty imposed at such places as the jury may find to be dangerous or calculated to produce injury. Under the charge given, the inquiry would necessarily involve the issue, Did the board, under the circumstances, use ordinary care in its determination of the question whether or not certain portions of the approach required the erection of guard rails? There is no common-law liability for negligence in this connection. The only liability therefor is that fixed in a supplementary section, which makes the county liable for failure of the board to comply with the duties prescribed in Section 7563, General Code. And whichever of the following constructions may be adopted, this duty cannot be obviated by a defense that it is only imposed at places and under circumstances contemplated in the charge of the court.

The petition was based upon a fixed duty imposed by the section named, and contained no allegation of neglect or failure to erect guard rails at points on the approach that were dangerous or calculated to produce injury. The section must be construed so as to require the commissioners either to erect guard rails at those points only where the approach or embankment is more than six feet high, or so as to require their erection at every point along the entire approach, although the greater portion thereof may be but little higher than the level ground. The section referred to also requires protection by suitable guard rails of all perpendicular wash-banks, more than eight feet in height, along public highways. It is common knowledge that many of these approaches, embankments and wash-banks are of great extent and usually form a gradual decline which extends for considerable distance but a few inches above the level. To insist that the whole extent of these should be protected by guard rails would be reductio ad absurdum, and a grave test upon the public funds. This could not have been the legislative intent. At any rate it would be of such doubtful and ambiguous import, that under the rule stated, the doubt should'be resolved in favor of the public. It is evident from the whole scope of the statute that the legislature intended to protect only those places designated by it peculiarly as points of danger. It required the erection of guard rails on county bridges, viaducts and culverts where the same were more than five feet high. It required suitable guard rails at all perpendicular wash-banks more than eight feet in height. And so when the statute imposed the duty upon the county commissioners to place guard rails on approaches or embankments more than six feet high, the legislature evidently had the intention to protect these fixed points of danger.

It is conceded by the facts in this case that the defendant in error diverged from the public highway at a point where the approach or embankment sloped to a level a foot and a half to two feet below the surface of the roadway, although there is some testimony to the effect that the roadway at this point was but little higher than the ground level.

In the view we have taken construing this section of the code, the court should have instructed the jury to return a verdict for the defendant at the conclusion of the evidence. It also erred in refusing to give the special charge requested, and in its general charge imposing a duty upon the defendant to erect guard rails at any point where it would have been dangerous or calculated to produce personal injury.

The judgments of the lower courts are reversea, and judgment in this court is rendered in favor of the plaintiff in error.

Judgments reversed.

Nichols, C. J., Newman and Johnson, JJ., concur.

Matthias and Donahue, JJ., concur in second proposition of syllabus.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Board of County Commissioners of Franklin County v. Kile.

      Bridges and approach — Guard rails — Provisions of Section 7563, General Code — No liability on county for negligence, when — Personal injury.

    (No. 15308
    Decided April 3, 1917.)
    Error to the Court of Appeals of Franklin county.

      Mr. Robert P. Duncan, prosecuting attorney, and Mr. Wm. J. Ford, assistant prosecuting attorney, for plaintiff in error.

      Mr. Will J. Hays and Messrs. Thomas & Hays, for defendant in error.
   By the Court.

This is a companion case to No. 15307, Board of County Commissioners of Franklin County v. Darst, reported ante, 163. Both cases were submitted and argued at the same time. The evidence in both cases was substantially the same. The defendant in error, R. Alvah Kile, was the driver of the horse and buggy. In the instant case the trial judge did not inject into his charge the question of negligence, as in the Darst case. However, he refused the following special instruction requested by the defendant at the trial:

“I charge you that the defendants were not required to erect any guard rail along the west side of the approach to this bridge unless you find that said approach was more than six foot high, and unless you find that said approach at the place where plaintiff drove off the same was more than six foot high, your verdict will be for the defendant.”

For the reasons given in the Darst case, supra, a refusal to give such request was error. On consideration whereof The judgments of the lower courts are reversed on the authority of the Darst case, supra, and proceeding to render the judgment that should have been rendered on the undisputed facts judgment is rendered in this court in favor of the plaintiff in error.

Judgments reversed.

Nichols, C. J., Newman, Jones and Johnson, JJ., concur.


author: Johnson, J. Jones, J.,

text:
    The State, ex rel. Taylor, v. French et al.

      Elective franchise—Qualifications of electors—Section i, Article V, Constitution—Powers conferred upon municipal corporations—Article XVIII, Constitution, 1912—Limitations of city charter—Validity of provisions for woman suffrage—In municipal elections—Constitutional law.

    1. The provisions of Section 1, Article V of the Constitution, which prescribe the qualifications of electors, control in all elections held to fill offices which the Constitution itself has provided for, and in all elections upon questions submitted to a vote pursuant to provisions of the Constitution; and such qualifications can be altered only by amendment to the Constitution.
    2. The Constitution itself having by Article XVIII committed to any municipality the power to frame and adopt a charter for its government and to exercise thereunder all powers of local self-government, subject to the limitations expressed in that article, a provision, in the charter of a municipality, adopted in full compliance with the article referred to, which confers upon women the right to vote for all municipal elective officers and to be appointed or elected to and hold any municipal office provided for in such charter, is valid. (Mills v. City Board of Elections et ah, 54 Ohio St., 631, and State, ex reh, v. City of Cincinnati et ah, 19 Ohio, 178, approved and followed.)
    (No. 15432
    Decided April 3, 1917.)
    In Mandamus.
    This is a proceeding in mandamus. The petition alleges that the defendants are the deputy state supervisors and inspectors of elections in and for the county of Cuyahoga, and with other defendants are the duly appointed, qualified and-acting judges of elections in and for the election precincts in the city of East Cleveland, Cuyahoga' county, Ohio; that on the 6th day of June, 1916, the electors of the city of East Cleveland, at an election duly called and held for that purpose, adopted a charter establishing and providing for the government of said city; that among other provisions said charter calls for the holding of an election in said city on the 7th day of November, 1916, to elect the municipal officials provided for therein, and provides that all elections shall be conducted and the results canvassed and certified by the election authorities prescribed by the general election laws; and that pursuant to said provisions the deputy state supervisors and inspectors named are making preparations for the holding of said election of municipal officials, by the male electors of said city, and at a meeting on the 20th of October, 1916, duly held and called, by unanimous vote adopted a resolution refusing to permit women to vote at said election, and directing the judges of election to refuse to receive the votes of women thereat.
    The petition avers that said charter contained the following provisions:
    “Section 36-A. Every woman, born in the United States, or who is the wife or daughter of a citizen of the United States, or who is a naturalized citizen of the United States, who is over twenty-one years of age and possesses the necessary qualifications in regard to residence provided for men, shall be entitled to vote for all municipal elective officers and shall be eligible to be appointed to, to be elected to, and to hold any municipal office. All women having the aforesaid qualifications shall also be deemed electors and shall be entitled to vote at all municipal elections except as otherwise provided by the Constitution of the State of Ohio.”
    “Section 96. For the purpose of nominating and electing officers, holding and conducting all municipal elections, and determining and establishing the right to vote at said elections, this Charter shall take effect from the time of its approval by the electors of the city; and for all other purposes, it shall take effect on the 1st day of January, 1918.”
    The relatrix alleges that she is a resident of East Cleveland and possesses the necessary qualifications to vote as prescribed in the charter.
    The petition prays that the writ of mandamus may issue commanding the defendants to permit her to vote at said election, and for all proper relief.

      The case is presented on demurrer filed to the petition.

      Miss Florence E. Allen; Messrs. Bartholomew, Leeper & White and Messrs. Gage, Day, Wilkin & Wachner, for relatrix.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, for defendants.
   Johnson, J.

The demurrants challenge the validity of Section 36-A of the charter of the city of East Cleveland, quoted in the above statement. They insist that a municipality is without authority to include in its charter any provision which extends the right of suffrage beyond the provisions of Section 1, Article V of the Constitution, viz.: “Every white male citizen of the United States, of the age of twenty-one years, * * * shall have the qualifications of an elector, and be entitled to vote at all elections.” They contend substantially that this section definitely fixes the class of persons who may vote at any election and that this class may vote at all .elections.

On the other hand it is contended that by the provisions of Article XVIII of the Constitution, as amended in 1912, which confers authority on any municipality to adopt a charter for its government and to exercise thereunder all powers of local self-government, the municipality of East Cleveland was authorized to include the provision in question in its charter.

Counsel for the relatrix contend that the case of State, ex rel. Mills, v. The Board of Elections et al., 9 C. C., 134, which was affirmed in 54 Ohio St., 631, on the authority of The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, is decisive of the question. It was there held that the act of April 24, 1894, conferring upon women the right to vote and be voted for at any election held for the purpose of choosing any school director, member of the board of education or school council under the general or special laws of the state is valid, it being within the power to provide for the establishment and maintenance of common schools which the constitution confers upon the general assembly, and not within the limitation contained in Section 1 of Article V.

It is said by Shauck, J., in the opinion: “There seems to be no occasion to doubt that only those who have the constitutional qualifications of electors can participate in elections held to fill the offices which the constitution itself has created. This is, in some states, held to be the extent of the constitutional restriction.”

In referring to The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, supra, Judge Shauck says: “In that case the court was called upon to determine whether an act which provided for colored schools in Cincinnati, and the election of colored directors by colored voters, was valid. Notwithstanding the provisions of article four of the constitution then in force, defining an elector to be ‘a white male inhabitant,’ the act was held valid, for the reason that The whole subject of organizing and regulating schools had been left to the general assembly, in the exercise of its legislative powers.’

In Belles v. Burr et al., 76 Mich., 1, it was held that the legislature may confer upon women the right to vote for officers charged with the management of the affairs of the school districts. In the Belles case, at page 11, it is said: “The authority granted by the Constitution to the Legislature to establish a common or primary school system carried with it the authority to prescribe what officers should be chosen to conduct the affairs of the school-districts, to define their powers and duties, their term of office, and how and by whom they should be chosen.”

In Wheeler v. Brady, 15 Kans., 26, it is held that a person having all the qualifications of an-elector, as defined by Section 1, Article V of the Constitution, except that such person is a woman, has the right to vote at an election regularly held for the election of a school-district treasurer. It is pointed out in the opinion that the constitution of Kansas did not anywhere mention the election of any school-district officer and specifically provided that all officers whose election or appointment is not provided for in the constitution should be elected or appointed as may be prescribed by law, and the court remarked: “Now, if section 1 of article V of the constitution does not apply to school-district elections, then what is there to prevent the legislature from conferring the right of suffrage in school-district elections upon women ?”

Section 27, Article II of the Ohio Constitution, contains a like provision, viz.: “The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.”

In The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, supra, the court say, at page 197: “Now a school director, although in some respects a public officer, is not even a township officer. He is merely the officer of a school district—a political organization unknown to the constitution—the mere creature of legislative enactment. And it seems to the court that the power creating the political organization might well define the qualification of its officers, if in so doing they do not violate any express provision of the charter under which they themselves act.”

The case of The State, ex rel., v. Constantine, 42 Ohio St., 437, is referred to by counsel for defendants. It was there held that “A statute authorizing the election of four members of the police board at the same election, but which denies to an elector the right to vote for more than two members is in conflict with article 5 of the constitution.”

The case was cited and considered by the court in the Mills case, supra. Judge Shauck said concerning it: “That act did not attempt to extend the right to vote to any who had not the constitutional qualifications of electors. The vice of the act, in the opinion of the court, was that in the election of municipal officers it denied the right of constitutionally qualified electors to vote for the whole number of officers to be chosen. It is clear that the act now under consideration is not within the terms of that decision, whether within its principles or not.”

The court in the Constantine case point out that the qualifications of electors are not defined by the statute there involved.

This court did not regard that case as controlling the Mills case, supra. Acts of a similar character have, upon like reasoning, been sustained in State, ex rel., v. Cones, 15 Neb., 444; Opinion of Judges, 115 Mass., 602, and Huff v. Cook, 44 Ia., 639.

Counsel for the relatrix cite authorities in support of the proposition that as to offices not contemplated or provided for in the constitution the legislature in creating such offices may prescribe the qualifications of the voters who are to participate in filling them, viz.: Hanna v. Young, 84 Md., 179; State, ex rel., v. Hanson, 80 Neb., 724; State, ex rel., v. Dillon et al., 32 Fla., 545; Scown v. Czarnecki, 264 Ill., 305, and Spitzer v. Village of Fulton, 172 N. Y., 285. So far as the present case is concerned, in the view we take, it is not necessary for us to approve the proposition stated nor to hold that-Section 1, Article'V of the Constitution of Ohio, is limited in its application to elections of officers enumerated in the constitution.

We think it may be safely stated that the weight of the adjudications since the decision of the Mills case, supra, has tended to support the propositions there laid down. There has been full acquiescence in that decision for a long period of time, and the statute -there involved has been in operation throughout the state. It is generally agreed that when a decision of a court of last resort determining the constitutionality of a statute has been acquiesced in by the legislature and the people for a considerable period of time, the courts incline to a steadfast adherence to that decision. 6 Ruling Case Law, 66.

Defendants call attention to Section 4 of Article XV of the Constitution as amended in 1913. After the language of the original section, “No person shall be elected or appointed to any office in this state, unless he possess the qualifications of an elector;” the amendment adds a proviso “that women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or children or both.” The proviso expressly concerns the appointment of women to the places named, and authorizes. the appointment of women who are not electors. It does not concern the qualification of electors or the method of determining it. For example, it would not be contended that it was intended to deprive women of the right to vote for or be elected as school directors in accordance with the statute then and now in force.

But it is insisted by the defendants that the Mills case should not be extended beyond its own limits; that the statute involved in that case was held valid as being within the power to provide for the establishment and maintenance of common schools, which the constitution confers on the general assembly. To this it is replied that in this case it is not necessary to do so — that the provisions of Article XVIII of the Constitution, as amended in 1912, contain an equally comprehensive authority to municipalities to adopt charters for their government and to exercise all powers of local self-government.

In The State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71, which involved the interpretation of the home-rule amendment, Article XVIII of the Constitution, Shauck, J., points out the steps by which the terms of that amendment became effective in the different municipalities.

He says, at page 93: “This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass.”

After reciting that one method is by the passage of laws by the legislature to be ratified by the municipality to be affected thereby, Judge Shauck continues: “The other mode is defined in the provisions of the later sections relating to the adoption of charters. From the terms and nature of these latter provisions they are self-executing in the sense that no legislative act is necessary to make them effective.”

In Billings et al. v. The Cleveland Ry. Co., 92 Ohio St., 478, it is said, at page 484: “It was contemplated by the .framers of the amendment to the constitution that the provisions in a charter, adopted by a city, would differ from the general laws of the state, within the limits defined by the constitution. The object of the amendment was to permit such differences and to make them effective. * * * The state has given its sanction to a charter or plan of local self-government when thus adopted. There is no imperium in imperio, except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed, and may thereby, subject to such limitations, exercise all powers of local self-government. This involves no lack of the harmony that is essential and no loss by the state of its proper authority over the city and its people. The charter becomes the organic law of the municipality so far as such local powers are concerned.”

The basis of the opinion and the judgment of the court in the Mills case, supra, was that the offices to be filled were not any of those created by the constitution, and that the constitution had conferred power upon the general assembly to provide for the establishment and maintenance of common schools.

As above stated, in this case it is not necessary, in the conclusion we have arrived at, to hold that Section 1, Article Y of the Constitution, is limited in its application to the election of officers enumerated in the constitution.

It is equally clear in the case we have here that the offices for which the relatrix seeks to vote were not created by the constitution, and it is also equally clear that the subject-matter, to-wit, municipal government, is one as to which the constitution confers power upon the municipality to adopt its own provisions. The charter , of a city, which has been adopted in conformity with the provisions of Article XVIII, finds its validity in the constitution itself, and not in the enactments of the general assembly. The source of authority and the measure of its extent is the constitution. It would seem by analogy, therefore, that, if the legislature was vested with power to confer the right to vote upon women for school directors, because that is not an office created by the constitution, and because the general assembly had been given power to provide for the maintenance of common schools, a fortiori the charter of a city, by which a part of the sovereign governmental power may be exercised under the sanction of the constitution itself, which conferred upon women the right to vote for municipal elective officers and to be elected to and hold a municipal office, not created by the constitution but by the charter itself, is valid.

Counsel for defendants concede that “it may well be that the power to prescribe the qualifications of electors for the purpose of all local elections is accurately classified as one of the powers of local self-government,” but contend that Article V, Section 1, is controlling. But we are here confronted with the Schedule to the Constitution, as adopted in 1912, viz.: “Any provision of the amendments passed and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail.”

Any provision in a charter which purports to confer powers upon a municipal government in excess of those permitted to be granted by the constitution, or which disregards in any way the limitations imposed by that instrument, would of course be void. Therefore, the provisions of Section 36-A, conferring upon women the right to vote for all municipal elective officers, and the right to hold any municipal office, could not be extended beyond the proper scope of local self-government.

The authority given by Article XVIII of the Constitution to adopt a charter, and exercise thereunder all powers of local self-government, is manifestly limited to matters of purely local and municipal concern. No power is thereby granted to legislate upon or interfere in any way with the affairs of the state government. The municipality, as well after as before the adoption of a charter, is an arm—a part—of the state. It could not confer upon women the right to vote for, or exercise any of the functions of, an office created by the constitution or by the general assembly. For example, Section 1, Article IV of the Constitution, makes provisions for courts to exercise the judicial power of the state. That is a matter wholly within the state governmental authority, to be provided for and regulated by the state. And to hold that a municipality could establish a court with jurisdiction in state cases, or make any other provision relating to governmental matters of the state or any of its subdivisions except the municipality itself, would be to confer on it powers not at all contemplated by the home-rule amendment.

It was held in Steamboat Northern Indiana v. Milliken, 7 Ohio St., 384, that an act to confer on a mayor jurisdiction of a justice of the peace in all matters, civil and criminal, arising under the laws of the state, required the votes of two-thirds of all the members elected to each house of the general assembly, under the provisions of Section 15, Article IV of the Constitution. This was on the ground that jurisdiction to try such cases was lodged by the constitution in state courts estab- ■ lished according to its provisions.

Section 10, Article IV of the Constitution, provides that “All judges, other than those provided for in this constitution, shall be elected by the electors of the judicial district for which they may be created, but not for a longer term of office than five years.”

Therefore, if a woman should be- elected mayor, pursuant to the terms of a charter adopted by a municipality, she would be incapable of exercising any of the jurisdiction of a magistrate in civil or criminal matters which the legislature might confer by general provisions upon the mayors of cities and villages.

For the reasons hereinbefore given, the writ will be allowed.

Writ allowed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.

Jones, J.,

dissenting. Section 1 of Article V of the State Constitution of 1851 is as follows: “Every * * * male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.”

The term “all elections” is now construed by this court to mean only those elections of constitutional origin or cognizance, and is so construed as not to include municipal elections. This section is simple, plain and explicit. It does not say “at all elections provided for by the constitution” or “at all elections except municipal elections.” It does not say “at some elections,” but “at all elections,” which includes municipal, a signification applied by legislative and popular policy in this state for nearly a century. This is the only article of the constitution that relates exclusively to the elective franchise, and in no other part of that organic law can there be found a single syllable which attempts to define the ■ qualifications of electors for the state and its political subdivisions. Until recently I have never heard the claim advanced, by layman, lawyer or jurist, that this section of the constitution did not embrace municipal elections. By the terms of this section the male sex obtained, via the constitution, the right to vote at municipal elections, and neither legislative policy nor enactment can deny them this constitutional right; although if the majority opinion be followed the legislature of the state may confine the elective municipal franchise solely to women, or to others, as it may choose. When the Constitution of 1851 was framed the members of the constitutional- convention knew that cities were organized and elections held therein, as held in townships, counties and state, and they employed this composite term, “all elections,” as comprehending each and every political election held in the state and its political subdivisions. They recognized municipalities as “things already in being.” See last proposition of syllabus, Cass v. Dillon, 2 Ohio St., 608.

The president of the Ohio Woman’s Suffrage Association simply reflected the view of the body politic, when, upon learning of the decision of this court, she gave the following interview to the press: “I had no idea when our suffrage movement was defeated in 1912 and the .home-rule amendment passed, that it might prove a valuable ally and secure municipal suffrage for us. Neither did forces that supported home rule have any such idea, I am sure.”

As applicable to the popular construction involved, and especially germane to this case, is the language of the judge delivering the opinion in Platt, a Taxpayer, v. Craig et al., 66 Ohio St., 75, 77: “The constitution must be construed in the light of the popular and received signification of its words. Because it emanates from the people it must be construed as the people must have understood it.”

When the constitutional convention of 1912 adjourned it submitted a constitutional amendment to the people granting to women the elective franchise “at all elections.” This was defeated by a majority of 87,455. Another proposal granting female suffrage by constitutional amendment was submitted in 1914, which if adopted would have granted women the right to vote at all elections. The proposition was again defeated, by a majority of 182,905. Can it be otherwise surmised than that the women of the state would have been endowed with full suffrage at all elections, including municipal, if either of these proposals had passed ? In the constitutional convention of 1912, proposals embodying woman suffrage and home rule ran along side by side, were discussed from every viewpoint and angle, and in the debates that ensued not a line espousing the right of the female sex to vote at municipal elections can be found in the report of convention proceedings., And in the election following, to adopt or reject the proposed amendments, neither on the hustings nor in the public press do I recall a single instance of the advocacy of this strange constitutional birth, which is now legitimatized by judicial mandate.

The decision in this case does violence to the plain terms of the constitution. The province of the court is to interpret, where interpretation is required. It cannot arrogate to itself the right to make a constitution. It must enforce the terms of the constitution irrespective of underlying public policy. As stated in The State, ex rel., v. Board of Elections, 80 Ohio St., 471, 491: “The question here is, whether a provision, whose meaning is certain, shall be enforced. It cannot be necessary to repeat the reasons which have led this court to give an affirmative answer to that question. * * * According to the view entertained by all constitutional lawyers, constitutions may not be amended by violence.”

And as conforming to the intention of the makers of the constitution, and of the .people who adopted it, the language of Judge Ranney in Hill v. Higdon, 5 Ohio St., 243, 248, is peculiarly apt: “It is our duty to give a construction to the constitution as will make it consistent with itself, and will harmonize and give effect to all its various provisions. To do this, we have only to suppose that the convention used language with reference to its popular and received signification.; and applied it as it had been practically applied for a long series of years.” In this connection it may be stated that the Constitution of 1802 had substantially the same sex qualifications as has the Constitution of 1851, both granting the male sex the qualifications of an elector “in all elections;” and this phrase received, at least so far as political elections were concerned, the sanction of popular thought and judicial decision as applicable to municipal as well as to county, township and state elections.

The rule of construction is also well stated in Wilcox v. Nolze, 34 Ohio St., 520, 523: “The rule applicable to constitutions, as well as statutes, which may be properly invoked in this case, is that, where the language is clear, there is no room for construction; and the spirit of a provision must be extracted from its words, and not from conjectures aliunde.”

Is it a reasonable construction that the members of the constitutional convention conceived or entertained the purpose of granting by legislation or municipal charter special privileges to women in the municipalities of the state while denying them to the women of the rural communities? The latter are just as much interested in governmental problems and in fiscal affairs as are their sisters dwelling in the cities. Yet in no possible event, under the strained construction given Section 1, Article V, can the women of hamlets and townships outside of municipalities ever hope to vote for trustees and other fiscal officers in townships, without amendment of the constitution, while those of their sex fortuitously dwelling in municipalities may vote for their fiscal municipal officers without such amendment. Whether decided correctly or not, the case of State, ex rel. Mills, v. Board of Elections et al., post, 194, granting women the right to vote for school officers, had the merit at least of placing the women of town and country on an equal plane and with equal suffrage throughout the entire state.

Under the construction here adopted, a municipality by charter, or the general assembly by law, may provide any qualifications for its electorate in municipal elections. Chartered cities may prescribe distinct and various qualifications without any semblance of uniformity. They or the legislature may nullify the constitutional requirements with respect to age and residence found in the section involved.

It is the uniform and fundamental principle of law that in the construction or interpretation of a constitution recourse may be had to the proceedings of the constitutional convention. On February 8, 1851, while the article on the elective franchise was before that body, Mr. Taylor, a member of that convention, offered the following as an additional section to the elective article: “Section 7. The General Assembly shall have power to extend the right of suffrage to inhabitants of this State not hereby qualified as electors.” (2 Debates, page 555.) It will be observed that this was not offered as a substitute for Section 1, Article V, but to supplement that section by giving to others not included therein the right of suffrage by legislative action. Had Section 7 been adopted, while the qualifications of the male sex would still have remained intact under Section 1 aforesaid, it would have permitted the general assembly to extend the right of suffrage to women in municipalities. The fact that this supplemental section was defeated by a vote of 11 yeas to 68 nays indisputably evinces the intention of the convention to commit the question of the entire elective franchise to the male sex, and to deny legislative interference by any extension thereof.

Prior to the adoption of the home-rule section our courts had uniformly and consistently denied women the right to hold any appointive or elective public office, whether that office were of constitutional origin or not. This is evinced by the decision of this court that a woman cannot hold the office of notary public, although this office is not a constitutional office but purely one of legislative creation. (Section 119 et seq., General Code, and State, ex rel. Atty. Genl., v. Adams, post, 196.) The holding of this court that the Elective Franchise Article of the Constitution comprehends offices and elections of constitutional origin or cognizance and does not embrace municipal elections is largely based upon the case of Scown v. Czarnecki, 264 Ill., 305, where, by a divided court, that state held that under the provisions of its constitution the legislature 'had authority to provide for municipal suffrage. The opinion of the majority in that case is not convincing, but the separate opinions of the three dissenting judges are buttressed by convincing reason and judicial logic. The Scown case is against the overwhelming weight of authority of the decided cases relating to the right of female suffrage under constitutions similar to our own: Coffin et al. v. Election Commissioners, 97 Mich., 188; Goggeshall et al. v. City of Des Moines, 138 Ia., 730, 736; Gougar v. Timberlake, 148 Ind., 38; Allison v. Blake, 57 N. J. Law, 6; In re Inspectors of Election, 25 N. Y. Supp., 1063; Minor v. Happersett, 21 Wall., 162, and Spencer v. Board of Registration, 1 MacArthur (D. C.), 169. The foregoing cases clearly establish the judicial principle that under such language as employed in our constitution, the constitution has taken entire and complete control of electoral qualifications, and that any attempt to limit or add to those qualifications is nugatory. In three of the foregoing cases an attempt was made by the legislature to confer limited suffrage upon women in local or municipal affairs.

The principle announced in the majority opinion herein, to the effect that the constitutional requirements relating to electoral qualifications in Section 1, Article V, do not apply to offices unknown to the constitution, has been repudiated many times by the decisions of the supreme court of this state. As heretofore stated the case of State, ex rel. Atty. Genl., v. Adams, post, 196, held that Section 1 of Article V of the Constitution rendered a woman ineligible to the office of notary public, an office purely legislative in character.

In the case of The State, ex rel. Armstrong, v. Holliday, Auditor, 61 Ohio St., 171, the supreme court held that the office of county warden, which is not recognized by the constitution, could not be created by legislative act providing for his appointment.

In the case of The State, ex rel. Attorney General, v. Wilson, 29 Ohio St., 347, our court of'last resort held that the office of medical superintendent, which is likewise unknown to the constitution, was subject to the provision of Section 4, Article XV thereof, requiring such office to be filled by an elector of the state.

In the case of The State, ex rel. Attorney General, v. Kennon et al., 7 Ohio St., 547, this court held that the legislature had no jurisdiction to appoint statehouse commissioners, positions likewise unknown to the constitution, and that a legislative appointment of such officers was violative of-Section 27, Article II of the Constitution.

The effect of all these decisions is, that though the offices may be purely the creature of legislative enactment, the cloak of the constitution covers them as well as those appointive or elective which are of constitutional origin.

In the case of The State, ex rel., v. Constantine, 42 Ohio St., 437, the supreme court applied the constitutional limitation to city officials, offices likewise unknown to the constitution. That was a proceeding to oust the defendants from the office of police commissioners, of the city of Springfield. This was purely a municipal office. The ouster was decreed because of the violation of Section 27, Article II of the Constitution, providing for the election and appointment of all officers. This decree was made effective as against the officers of a municipality, and it followed, of course, that the term “all officers” used in that section included municipal as well as constitutional officers.

The majority opinion finds comfort in the case of State, ex rel. Mills, v. The Board of Elections et al., 9 C. C., 134, Judge Shauck delivering the opinion. That case was affirmed by an evenly divided court, and without opinion, in 54 Ohio St., 631. Judge Shauck, who had delivered the opinion on the circuit, having in the meanwhile been elected to the supreme bench, voted for affirmance. Minshall, C. J., Bradbury and Burket were marked as dissenting. The case upheld the power of the general assembly to confer upon women the right to vote for school officers. It is now said that this unreported case sustains the principle that the constitutional provision relating to sex qualifications does not apply to municipal officers. Whether the case was rightfully decided or not I am for sustaining the principle therein announced under the doctrine of stare decisis, and I would claim the same privilege from the majority of likewise upholding the same doctrine if it is demonstrated that this court in the past has uniformly refused to apply Section 1, Article V, solely to elections and offices of constitutional cognizance. The decision in the Mills case, supra, was based squarely upon the fact that the special and express provisions of the constitution relating to public schools govern, and the act there involved was held constitutional for that reason only. The learned judge in that case said that the rule that the general assembly might provide electoral qualifications for offices unknown to the constitution was followed in some jurisdictions, but did not obtain everywhere, and especially it did not obtain in Ohio. On page 138 it is said: “It must be admitted that the rule that persons not having the constitutional qualifications of electors may be authorized to vote at any election that is not held to fill an office created by the constitution does not obtain everywhere. In view of State ex rel. v. Constantine, it cannot be said to obtain in this jurisdiction The Constantine case cited by him, and noted above, relates entirely to purely municipal officers, and it would therefore appear that by discarding the rule claimed then and now, the court on the circuit stated that the feature of the office, whether constitutional or otherwise, did not govern its action, but that it was based entirely upon distinct and special provisions in our constitution relating to public schools. This position is clarified by the succeeding sentence of the judge in the paragraph named, where he states that the ample powers for the establishment and maintenance of public schools, conferred by the legislatures of the various states, carry with them power to extend the right to vote for school officers to persons not within the constitutional definition of electors, “unless such officers are designated by the constitution, or are officers of municipal or political divisions recognized by the constitutionBy the use of that language it clearly appears to be the view of the court that the legislature had no power to extend the vote either for officers designated by the constitution, or for officers of municipal and political divisions recognized by the constitution.

This is indubitably shown by the further fact that the circuit court in the Mills case relied upon two differentiated cases reported by the supreme court of Michigan, under a constitution similar to our own, and which grants to the male sex the right to vote “in all elections " These cases are Belles v. Burr et al., 76 Mich., 1, and Coffin et al. v. Election Commissioners, 97 Mich., 188. Under this similar provision of the Michigan constitution the court held in the former case that the legislature of Michigan had authority to confer upon women the right to vote for school officers; but, in the second case, when the legislature of the state, later, in 1893, attempted to confer upon women the right to vote for village and city officers, the legislative act was declared unconstitutional.

If there be any doubt as to the attitude of our court upon this subject it has been definitely and conclusively settled by the case of State, ex rel. Attorney General, v. Adams, 58 Ohio St., 612. This case involved the question of whether Miss Adams could be commissioned as a notary public of Lake county, and it will be observed that the office in question was neither of constitutional origin nor cognizance. The legislature had passed an act which had authorized the governor to make the appointment, 93 Ohio Laws, 405. The court held that the legislative effort was ineffectual to render her eligible to the office of notary public in view of the provisions of Section 4 of Article XV, and Section 1 of Article V of the Constitution. The opinion was by the court and appears to be unanimous. The court referring to the Mills case, reported in 9 C. C, supra, and to a former case decided by this court, both relating to the subject of schools, said, at page 616: “It was held in those cases that the qualifications of an elector are not essential to the holding of positions of an official character under the school laws, because of the effect of the constitutional provisions relating especially to the subject of schools. Those cases have not sufficient breadth or strength of foundation to admit of additional superstructure.”

The phrase “and all elections” has been incorporated in another part of the Ohio constitution. A constitutional amendment was adopted in 1905 providing for biennial elections. This amendment, Section 1, Article XVII, after providing that state and county officers shall be elected in the even numbered years, then proceeds as follows, “and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.” Can it be argued that this section of the constitution is ineffective and does not cover municipal as well as township elections ? Under its provisions undoubtedly the legislature has no authority to prescribe by law, nor a municipality by its charter, for a municipal election to be held any other time than that mentioned in the constitution. The phrase “all elections for all other elective officers” undoubtedly includes municipal as well as township officers, and their election must be held in the odd numbered years as provided for therein. This is the view taken in the opinion of the court in Holbrock v. Smedley, 79 Ohio St., 391, wherein it is said, at page 398: “By the constitutional amendment, (Article XVII, adopted in 1905) providing for biennial elections, municipal elections are now required to be held in November and in the odd numbered years.”

Let us assume that the city of East Cleveland under its claimed prerogative should attempt to hold a municipal election by the use of voting machines, could such a prerogative be maintained in view of Section 2 of the Elective' Franchise Article, which provides that “all elections” shall be by ballot? The case of The State, ex rel., v. Board of Elections, 80 Ohio St., 471, decided that an act authorizing the use of such voting machines in the city of Cleveland was void because it was repugnant to the foregoing section, which provided that “all elections shall be by ballot.”

Section 6 of the Elective Franchise Article provides that no idiot or insane person shall be entitled to the privileges of an elector. .This certainly applies to municipal as well as other elections, and neither city or legislature can qualify that section by any law limiting its purport. There seems to be no reason why the constitutional requirement that males only shall be entitled to vote at all elections should apply to offices known to the constitution any more than to those of municipalities organized by the state.

Article XVIII, Section 1, provides for the classification of cities and villages. Article XVII, Section 1, provides for the election of all other elective officers than state and county in odd numbered years. And Section 3 of the same article provides that every elective officer holding office when this amendment, is adopted shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law. Article XVII, Section 2, provides for the terms of state,' judicial, and elective county, township and municipal officers. Article XVIII, Section 13, provides for a limitation of municipal indebtedness. Article XV, Section 7, provides that every person chosen or appointed “to any office” under this state shall take the oath of office before entering upon the discharge of its duties. Section 10 of the same article provides that appointments and promotions in the civil service of the state, counties and cities shall be made according to merit and fitness; and Section 7 of the Elective Franchise Article provides that all nominations for elective state, district, county or municipal officers 'shall be made at direct primary elections or by petition as provided by law.

These various sections have been cited in order to show the consideration given by the Ohio Constitution to the organization, government and control of its municipalities and municipal officers. Far more regard and control is shown by these constitutional provisions to the municipalities of the state than is shown to its other political subdivisions, such as counties and townships. Such being the case does it not follow that, by the adoption of all these provisions of the constitution, our organic law had as much- regard for the subject of electoral qualifications of those in cities as for those who dwelt without ? If construction were necessary for the phrase under controversy the legal maxim expressio unius est exclusio alterius is peculiarly applicable. That is, Section 1, Article V, having designated the qualifications of electors, it thereby determined who should exercise the franchise, and necessarily excluded all others. As stated by that great constitutional lawyer and judge, “Wherever the constitution has prescribed the qualifications of electors, they cannot be changed or added to by the legislature, or otherwise than by an amendment of the constitution.” Cooley’s Constitutional Limitations (7 ed.), 902.

It is stated in the syllabus of the case of McCafferty v. Guyer et al., 59 Pa. St., 109:

“2. The legislature cannot confer the right to vote upon any classes but those to whom it is given by the constitution; the description of those entitled excludes all others.
“3. The 3d article of the constitution is not merely a general provision defining the indispensable requisites to the rights of an elector, leaving the legislature to determine who may be excluded. It is a description of who shall not be excluded.”

In the preparation of the Constitution of 1851, when Section 1, Article V, was proposed, surely such eminent jurists as Ranney, Swan and Hitchcock (members of that convention and later distinguished members of this court) had no thought that they were framing an elective article, the effect of which, under the construction now made, would be to apply the electoral franchise under the term “all elections” only to those offices known to the constitution, and not to municipal offices; and that the general assembly might thereafter provide female electoral qualifications for the office of township constable, an officer not recognized in the constitution, but be without legislative power to grant women the right to vote for township trustees, which officers are so recognized; nor had they a thought that the legislature would have power to provide for female suffrage for the office of coroner, which is unknown to the constitution, but would have no authority to grant women the right to vote for clerk of courts and sheriff, county offices which are recognized by that organic law.

Article XVIII, adopted September 3, 1912, provides that municipalities shall exercise “all powers of local self-government.” It will not be permitted to allow the dubious character of this grant to strike down another and express provision of the constitution dealing solely with the elective franchise, and which is the only article of that instrument which attempts to deal with the subject of the elective franchise. The position now taken by this court is—that as municipal elections and the qualifications of electors therefor were within the legislative powers, a municipality had like and equal power by its charter, to fix the qualifications of electors for municipal officers. The right of suffrage is a sovereign right. It is one of the attributes of sovereignty, and in this state it has been so recognized by confiding the entire subject of the elective franchise to Article V of our Constitution, limiting that right in political elections to the male sex solely. A municipal charter may now in many respects ignore a state law, but it cannot nullify the state constitution.

However, there is still another insuperable reason against the position taken by the majority of this court, which, in my opinion, absolutely destroys the fallacy on which it is based. This is found in Section 4, Article XV, of the Ohio Constitution, amended at the recent election occurring in November, 1913. So far as this relates to the' electoral qualifications this section is a companion section to Section 1, Article V, now in controversy. Prior to the election of 1913, it read as follows: “Section 4. No person shall be elected or appointed to any office in this state, unless he possess the qualifications of an elector.” At that election, however, the people of this state amended this section to read as follows: “Section 4. No person shall be elected or appointed to any office in this state unless possessed of the qualifications of an elector; provided that women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or children or both.” (103 O. L., 992.) And since this provision is a later pronouncement by the people than the provisions of the home-rule amendment, adopted in 1912, due regard should be given to its effect because of that fact.

The provisions of the East Cleveland charter, in granting to the female sex the right to vote for municipal elective officers, also provide that they shall be eligible for appointment or election to any municipal office therein. By this adoption the charter flew in the teeth of the 1913 amendment and is in flagrant defiance thereof. This recent amendment provides generally that women cannot be elected to any office in this state, unless possessed of the qualifications of an elector. To ascertain what such qualifications are recourse must be had of course to Section 1, Article V, which attaches them to the male sex alone. It follows that under the new amendment they can not be elected to any office, but may be “appointed” only. And the provision limits the right of women citizens to hold appointive offices to those departments or institutions established by the state or any political subdivision thereof involving the interests or care of women or children. The city of East Cleveland is a political subdivision of the state, and this section of the constitution in effect denies women the right of election but permits them merely to be appointed to positions in the special class of institutions named; and this includes such institutions established by a municipality, which is a political subdivision of the state. This clearly negatives the idea that they may be elected to or hold city offices in the city of- East Cleveland, as proposed by the charter; and I submit that if power to grant elective franchise is conferred by the words “local self-government” in the home-rule section, that this latest act of the people by the constitutional route, adopted by them since the adoption of the home-rule amendment, has effectively destroyed that power if it ever existed. A fortiori, in view of this recent amendment, and without the cloak of the home-rule amendment, it is impossible to sustain any construction that endows the legislature with authority to confer upon women the qualifications of an elector, or which empowers them to hold office in any institutions other than those specifically mentioned in this recent amendment. The fatuous position a woman would occupy as mayor of East Cleveland is disclosed in the closing paragraph of the majority opinion—a woman shorn of official functions—a queen with a tarnished crown!

The duty of the court here is to uphold and maintain the plain and explicit terms of the constitution. It is not a question of public policy, nor a question whether the action of the people by its adoption in the manner stated was wise or unwise. Under the trend of modern events, and having in view the commanding position that the female sex is taking in the current affairs of the nation, the electorate of this great state may determine the unwisdom of the Constitutions of 1802 and 1851 in denying suffrage to the female sex; but it seems to me that this appeal for the enjoyment of limited or full suffrage should be met by an amendment to the constitution of the state, the source from which it was obtained by the other sex. And when that measure of enjoyment is secured, under the phrase “at all elections” now employed in the present constitution, I shall consistently uphold their right to full suffrage at all elections held in this state, and shall not limit them to the right to vote at a part of them only. I shall give them the full loaf which they have always demanded, and not the half-loaf doled out by the judicial mandate in this case.


author: Donahue, J.

text:
    Heininger v. Davis, Mayor.

      Courts of appeals—Jurisdiction in error—To review finding by mayor—Section 6152, General Code—Intoxicating liquors— Constitutionality of Section 6164, General Code — Proceedings in error.

    1. The constitution of the state vests in the courts of appeals jurisdiction to review, affirm, modify or reverse the judgment of a mayor of a municipal corporation, in the exercise of the judicial power conferred upon mayors of municipalities by Section 6152, General Code of Ohio.
    2. Section 6164, General Code, is a valid and constitutional exercise of the power of the general assembly to provide by law the procedure to invoke the jurisdiction in error conferred by the Constitution of Ohio upon courts of appeals.
    (No. 15365
    Decided April 17, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    On the 20th day of March, A. D. 1916, a petition was filed, under the provisions of Section 6142, General Code, with the mayor of the city of Cleveland, Ohio, against prohibiting the sale of intoxicating liquors, which petition was duly examined by the mayor at a public hearing, and on the 17th day of April, 1916, found by said mayor to be sufficient, and a copy of this decision filed with the clerk of the city of Cleveland.
    Upon leave granted, J. W. Heininger, the plaintiff in error, on the 27th day of April, 1916, filed a petition in error, together with a bill of exceptions taken at the hearing before said mayor, and all the original papers in the case, in the court of appeals of Cuyahoga county.
    On the 13th day of June, 1916, the plaintiff in error filed in the error proceedings in the court of appeals a transcript of the mayor’s docket.
    On the 18th of May, 1916, the defendant in error filed a motion to dismiss the proceedings in error, for the reason that plaintiff in error had not complied with Section 12263, General Code, requiring him to file either the transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.
    On the 4th of June, 1916, this cause came on to be heard upon the motion of the defendant in error to dismiss the proceedings, and on the 3d of July, 1916, the following judgment was entered of record:
    “This cause came on to be heard upon the pleadings, and the transcript of the record in the court of H. L. Davis, Mayor, and was argued by counsel; and on consideration of all the assigned errors, the court dismisses the petition in error for want of jurisdiction, without record, at the plaintiff in error’s costs, for which judgment is rendered against him.”
    This proceeding in error is filed in this court to reverse the judgment of the court of appeals dismissing plaintiff’s petition in error.

      Mr. George A. Phillips and Mr. J. A. White, for plaintiff in error.

      Mr. George W. Shaw, for defendant in error.
   Donahue, J.

It appears from the record in this case, and the briefs and argument of counsel, that the judgment of the court of appeals dismissing the petition in error was based solely upon the conclusion reached by that court that it had no jurisdiction to review the judgment of the mayor of Cleveland, for the reason that the mayor’s court is not a court of record.

Section 6 of Article IV of the Constitution provides among other things that the court of appeals shall have jurisdiction “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.”

If, therefore, the mayor’s court is not a court of record, the general assembly could not confer upon the court of appeals jurisdiction to review, affirm, modify or reverse the mayor’s decision in this case. The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415.

In view of the conflicting decisions upon the subject, it is not easy to define a court of record. Chief Justice Holt defined a court of record as a court having authority to fine and imprison. (Groenvelt v. Burwell, Salk., 200.) To this definition Blackstone added the requirement that the proceedings of a court of record must be enrolled as a perpetual memorial.

In the case of The Thomas Fletcher, 24 Fed. Rep., 481, 482, the court defined a court of record as “a court where the acts and proceedings are enrolled in parchment for a perpetual memorial and testimony.”

A great many other courts have adopted the same definition, some adding the requirement that a court of record must have a seal. (Ingoldsby v. Juan, 12 Cal., 564, 580.) Still others have held that a court of record is one having power to fine for contempt. State v. Conner, 5 Blackf., 325.

In the case of Adair’s Admr. v. Rogers’s Admr., Wright, 428, a court of record is defined as “One, the history of whose proceedings is perpetuated in writing,” and applying this definition to the question then before this court it was held that “justices of the peace are required to keep a docket, in which they shall make fair and accurate entries of all suits before them, with their proceedings thereon,” that the “docket is a public book and goes to the successor of the justice” and that “their courts are courts of record.”

In the case of Silver Lake Bank v. A. and S. Harding, 5 Ohio, 546, it was held that a justice of the peace court in Pennsylvania is not a court of record within the provisions of the constitution and laws of the United States. In discussing this question in the opinion, it is said: “A justice’s court in Pennsylvania is not a court of record, a docket and short minutes of his proceedings are all that is kept by the justice, such as is kept by our justices of their proceedings.” This conclusion appears to be based upon a construction of the act of congress passed in May, 1790, prescribing the manner in which public acts, records and judicial proceedings of the several states shall be proved or admitted in evidence in courts of any other state. This act requires the attestation of the clerk, and seal of the court annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magistrate that the attestation is in due form. The justice’s court cannot authenticate its records as required by this act; nevertheless this court held in Bank v. Harding, supra, that the judgments of justices’ courts, duly proved, come fairly within the provisions requiring full faith and credit to be given in each state to the public acts, records and judicial proceedings of every other state. No reference is made in the Harding case to the case of Adair’s Admr. v. Rogers’s Admr., supra, yet, from the reasoning of the court, it would appear that the cases are in conflict.

The case of Silver Lake Bank v. Harding, supra, is cited with approval in the case of Stockwell v. Coleman, 10 Ohio St., 34, in support of the proposition that “a judgment of a justice of the peace is a judicial proceeding to which the constitution requires full faith and credit to be given.” No attempt is made in this later case to define a court of record, but in the opinion it is stated that the courts of justices of the peace in the state of Indiana are not courts of record, yet the judgments of such courts are entitled to full faith and credit in other states.

In the case of Hooker v. State, 7 Blackf., 272, it was held by the supreme court of Indiana: “A court that is bound to keep a record of its proceedings, and that may fine or imprison, is a Court of record.. 3 Blacks. Comm. 24. A justice’s Court is within that definition.”

The same holding has been announced in the states of Delaware, Vermont, and in some others. There are, however, a number of decisions to the contrary by courts of last resort in other states.

In the case of Wheaton v. Fellows, 23 Wend., 375, it was held that a justice’s court may be considered a court of record for some purposes.

. The only possibility of reconciling these conflicting decisions is upon the theory of classification made by Sir Matthew Hale, (Hale’s. Analysis of the Law, 27), in which he divides courts of records into three classes: 1. Supreme. 2. Superior. 3. Inferior.

The distinction between inferior courts of record and inferior courts not of record seems to be that' the one has authority to fine and imprison for contempt, and the other has no such power.

In the case at bar, the charter of the city of Cleveland was not introduced in evidence. This charter, however, has been considered by this court in the case of State, ex rel. Linden, v. Davis, Mayor, post, 301, subsequently submitted, and in this later case this court has held that by the express provisions of the charter itself the mayor of the city of Cleveland has all the statutory power and authority of mayors in cities of the state not having a charter.

Section 4548, General Code, provides that the mayors of cities and villages “within the limits thereof shall have the jurisdiction and powers of a justice of the peace in civil cases, and his proceedings therein may be reviewed in the same manner. He shall have the jurisdiction in criminal cases herein provided.”

Section 4550, General Code, provides that the mayor “shall keep a docket.”

Section 4551 provides that “appeals may be taken from the decision of the mayor in civil cases.”

It is further provided by statute, that the mayor in cities not having a police court, and in villages, shall have final jurisdiction to hear and determine cases prosecuted for the violation of an ordinance of the corporation, unless imprisonment is prescribed as a part of the punishment, and where imprisonment is prescribed as a part of the punishment, the council may provide by ordinance for the summoning and impaneling of a jury by the mayor, to try and determine the guilt or innocence of the accused, and in felonies and other criminal proceedings, not specifically provided for by statute, such mayor shall have such jurisdiction and power throughout the county concurrent with justices of the peace. The mayor is also provided with an official seal, and required to affix this seal to all writs, processes, transcripts and other official papers, and is authorized to punish contempt and compel attendance of jurors and attorneys. While some of these provisions do not apply to the mayors of cities having a police court, nevertheless they should be considered in connection with the provisions of the statutes relating to the mayors of all cities and villages for the purpose of determining the character of the mayor’s court. From these statutory provisions, it would appear that it is a court required to keep a record in which its proceedings are perpetuated in writing; that this record is a public record that goes to the mayor’s successors in office; that it has jurisdiction to fine and imprison and to punish for contempt of court.

It would therefore seem to meet not only the definition given by Sir Matthew Hale of inferior courts of record, but also seems to meet every other definition of courts of record given by any of the courts of England or the United States.

Aside from these considerations, however, the legislation relating to the particular question presented by the record in this case is so definite as to eliminate all uncertainties.

Section 6142, General Code, confers jurisdiction upon the mayor of a municipal corporation to hear and determine the sufficiency of the petitions filed with him in pursuance of that section, and Section 6152 specifically authorizes and requires the mayor to make .a record on his docket. This statute obviates the necessity of any technical classification of the mayor’s court, by providing in terms the constitutional requirements necessary to a review by the court of appeals of the mayor’s finding and judgment.

The court of appeals therefore erred in dismissing this petition in error for this reason. But that error does not necessarily require a reversal of the judgment, if the court of appeals should have sustained the motion of defendant in error to dismiss the petition in error for the reason that the plaintiff in error had not complied with Section 12263, General Code, requiring him to file either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or a transcript thereof, as are required to exhibit the error complained of.

The plaintiff in error did file with his petition in error a bill of exceptions, and all the original papers in the case, but a transcript was not filed because the mayor, acting upon the advice of the law department of Cleveland, believed he had no right to make such record or to certify such transcript. Mandamus proceedings were instituted by the plaintiff in error to secure the transcript. It was secured and filed before the hearing of the case. .

If under the statute authorizing this proceeding in error it is necessary to file such transcript with the petition in error at the time the petition in error is filed, the refusal of the mayor to deliver such transcript upon demand and tender of fees therefor would be sufficient excuse for not filing the same, provided the plaintiff in error promptly brought and diligently prosecuted an action in mandamus to compel the making and delivery of such transcript.

The motion also asks the court to dismiss the proceedings in error for the further reason that plaintiff in error did not furnish security for cost before filing petition in error, as required by Section 6166, General Code. Counsel evidently did not rely upon this branch of the motion, for no reference is made to it in the briefs. It appears from the transcript of the docket and journal entries in the court of appeals that security for cost was furnished shortly after the petition in error was filed, and many days before the motion was made to dismiss.

The judgment of the court of appeals is reversed, and the cause remanded to that court with directions to overrule the motion to dismiss, and for further proceedings according to law.

Judgment reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.