Opinion
Decided January 11, 1926.
Municipal corporations — Cannot create courts or office of judge — Power solely in legislature — Sections 1 and 10, Article IV, Constitution — Common pleas court — No jurisdiction of error proceedings from court not lawfully created — Existence of duly constituted office necessary for de facto officer — Error proceedings — Filing bill of exceptions immaterial in determination of jurisdictional question.
1. Under Article IV, Section 1 of the Constitution of 1912, no tribunal with attributes of court, other than those named therein, can be established without act of Legislature.
2. Municipalities cannot, in view of Article IV, Sections 1 and 10 of the Constitution, create courts or office of judge.
3. A de facto officer is one invested with office; but, if there is no office, there can be no officer.
4. An office may exist only by duly constituted law.
5. It was immaterial whether bill of exceptions was filed in time, where from entries and other papers in case, in addition to judicial knowledge, there was sufficient foundation on which court was empowered to act.
6. Where municipal or police court of city was without lawful existence, common pleas court was without jurisdiction to hear case therefrom on error, or to remand case to it to carry sentence into execution.
ERROR: Court of Appeals for Cuyahoga county.
Mr. W.C. Boyle and Messrs. Simmons, De Witt Vilas, for plaintiff in error.
Messrs. Friebolin Byers, for defendant in error.
This cause comes into this court on error from the court of common pleas of Cuyahoga county, to which court error was prosecuted from a so-called municipal or police court of Cleveland Heights, Cuyahoga county, wherein the plaintiff in error, charged under an affidavit of the offense of larceny, was found guilty and sentenced, and the question which is decisive of the case here is whether there was in lawful existence, during the proceedings, a municipal court or a police court of Cleveland Heights, or a judge thereof. If there were no such office, and no such officer, then, when the common pleas court dismissed the petition in error, and remanded the cause for the purpose of carrying the sentence into execution, it is obvious that the error was vital, and that the prisoner should be discharged.
Under Section 1, Article IV, of the Constitution of Ohio of 1912, the judicial power of the state is vested in the Supreme Court, Courts of Appeals, courts of common pleas, probate courts, and such other courts inferior to the Courts of Appeals as may be created by law from time to time. From this it is plain that under the Constitution no other tribunal with the attributes of a court could be established without an act of the lawmaking body of the state, to wit, the Legislature.
In State ex rel. Cherrington v. Hutsinpiller, 112 Ohio St. 468, 147 N.E. 647, decided April 28, 1925, by the Supreme Court of Ohio, it was held that municipalities of Ohio have no power whatsoever, either by charter or in any other manner, to establish courts or to appoint judges thereof, because to do so would be in violation of Sections 1 and 10 of Article IV of the Constitution.
In 1922 the city of Cleveland Heights began to operate under a charter, after a vote of the people of the city on August 9, 1921. Article 6 of the charter attempted to create a police court for the city of Cleveland Heights and the office of judge thereof, and styled such tribunal a police court. This article of the charter is the sole authority for the court and the judge exercising power as a judicial tribunal during the proceedings in the case at bar. The Legislature of Ohio, however, in 1925, by due enactment under the Constitution, created a municipal court and the office of judge for Cleveland Heights, but this act was subsequent to the proceedings in the case at bar.
It is settled authority in Ohio, not only by the decisions of this court, but by the decisions of the Supreme Court itself, that a municipality cannot create courts or the office of judge, either through its legislative department alone or by acting under authority of a charter which attempts to create a court and a judge thereof. The authorities to this effect are decisive of the question at bar, and, therefore, when the common pleas court dismissed the petition in error, and thereupon remanded the cause to the municipal court to carry the sentence into execution, it is clear that it was without authority so to do, because there was no court, no office, and consequently no officer, created by the Constitution of Ohio, or by the Legislature, and these being the only sources of judicial power, and no such office or officer having been created thereby, certainly no such office or officer existed. Unless the office existed there could be no officer either de facto or de jure. A de facto officer is one invested with an office; but, if there is no office with which to invest one, there can be no officer. An office may exist only by duly constituted law.
In the present case it is immaterial whether the bill of exceptions itself was filed in time, in order to decide the main question of error, because from the entries, original and other papers in the case, in addition to judicial knowledge, there is sufficient foundation upon which the court has power to act.
It follows, therefore, that the common pleas court was without jurisdiction to hear the case on error, and in no event did it have authority to remand the case for review to a court or judge, neither of which was in existence.
Holding these views, the judgment of the common pleas court is hereby reversed, the proceedings of the magistrate's court held for naught, and the plaintiff in error discharged.
Judgment accordingly.
LEVINE, P.J., and VICKERY, J., concur.