#### In re Bostwick, Judge.

(No. 23358

Decided April 6, 1932.)

*Mr. John E. Todd,*for plaintiff in error, respondent in the trial court.

*Messrs. Baker, Hostetler, Sidlo £ Patterson*and *Mr. Chas. S. Druggan,*for defendants in error, complainants in the trial court.

By the Court.

During our consideration of this case the Chief Justice advanced the contention that the removal of a public officer is a political question; and that therefore the decision of the court of common pleas removing Judge Bostwick; is final and not judicially reviewable. That this was not the legislative purpose is clear, for none of the removal statutes stipulate that the decision of the common pleas court shall be final, but they do stipulate that its decision may be reviewable upon error. Such conclusion, that the decision of the common pleas court is final, is not advanced by counsel for either side; not by counsel for Bostwick, for he invoked the jurisdiction of the Court of Appeals and of this court; nor is it advanced by counsel for the other side, for he expressly and in open court disavowed any such claim.

The contention thus advanced, as above stated, is based on the argument that the power of removal is a political question purely, and not justiciable. If that be so — if the power of removing judges be political and not judicial — then it is clear that the Chief Justice himself could not exercise his authority to select the *183court to try Bostwick; for the office of Chief Justice is clothed, not with political, but with judicial powers. It is well settled that if a statutory power is conferred upon the common pleas court in the first instance it is a judicial power, and its judgment as in any other case is subject to review by the Court of Appeals and by this court. In *City of Zanesville*v. *Zanesville Telegraph & Telephone Co.,*64 Ohio St., 67, 59 N. E., 781, 52 L. R. A., 150, 83 Am. St. Rep., 725, the second paragraph of the syllabus reads:

> “The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.”

The cases of *State, ex rel. Atty. Genl.,*v. *Hawkins,*44 Ohio St., 98, 5 N. E., 228, and *State, ex rel. Vogt,*v. *Donahey, Governor,*108 Ohio St., 440, 140 N. E., 609, can be distinguished, for in both of those cases the power of removal was lodged in the Governor. Here by Sections 10-1, General Code, *et seq.,*the Legislature not only intended, but did in express terms, confer the power of removal on the common pleas court, as a court. It provided that the court should render *“judgment*of forfeiture of said office with all its emoluments entered thereon against” the party charged with misconduct; it provided definitely for venue of trial, methods of procedure, which were to be “of public record” and filed with the clerk; it provided for subpoena and process; and, so that the rights of the litigants might be safeguarded, it expressly provided that the “decision of the court of common pleas in all cases for the removal of officers may be reviewed on error by the court of appeals.” Section 10-4. And it further provided for the filing of the “transcript of the record and the petition in error * * * in such court of *184appeals.” Who can successfully maintain that the judicial character of the power of removal has not been fixed by the Legislature within the holding of the *Zanesville case, supra¶*And who can question the constitutional power of the Legislature to confide jurisdiction to remove officers upon its courts ?

Article IV, Section 4, of the Constitution, provides that the jurisdiction of the common pleas court shall be fixed by law; and Article II, Section 38, provides that “Laws shall be passed providing for the prompt removal from office,” etc. Under these sections full provisions were legislatively adopted committing the power of removal upon a court of first instance, with specific provisions for judicial review by superior courts.

Since the majority of this court construes and holds that the powers and functions employed by the statutes alluded to are judicial powers and functions conferred upon the courts, no constitutional question is presented. For that reason, the motion to dismiss should be sustained.

*Motion sustained.*

Jones, Matthias, Day, Allen and Kinkade, JJ., concur.

Stephenson, J., not participating.

Marshall, C. J.,

concurring. It is a little unusual to use the discussion of the consultation room as the basis for discussion of legal questions in an opinion, but, inasmuch as that course has been followed by the majority, I have no particular reason to complain. My position is correctly reported by the majority opinion. I am clearly of the opinion that the removal of an official from office for misconduct is not in any sense justiciable, but, on the contrary, involves only a political matter. Section 38, of Article II of the Constitution, was adopted to provide an additional method for re*185moving public officers by processes other than impeachment. That provision did not refer to a determination of title as between two claimants to an office. *Quo warranto*would have been a remedy for such a controversy, which is clearly a judicial question. Removal of an officer from office must be either judicial or political. It cannot be both. If it is judicial, then Sections 6212-34 and 4268, General Code, which provide for removal of certain officers by the Governor, must be held to confer judicial power upon an executive office. Those statutes have repeatédly been upheld by this court. *State, ex rel. Atty. Genl.,*v. *Hawkins,*44 Ohio St., 98, 5 N. E., 228; *State, ex rel. Vogt,*v. *Donahey, Governor,*108 Ohio St., 440, 140 N. E., 609. By upholding the validity of those statutes and the power repeatedly exercised by the Governor by virtue of those statutes, this court has unequivocally held that the power of removal is a political power.

The Legislature had the right to leave this political question to the determination of the court of common pleas, just as it has left other political powers to the court of common pleas, as, for instance, determination of an election contest. The Legislature did not, however, have the power to confer upon the Court of Appeals authority to review the order of the court of common pleas in removing an officer. If the power of review could be conferred upon the Court of Appeals to affirm, reverse or modify such an order made by the court of common pleas, it could likewise confer upon the Court of Appeals the power to review an order of removal by the Governor. I am therefore of the opinion that the order of the court of common pleas removing Judge Bostwick is a finality, and not subject to review by the Court of Appeals, and therefore not subject to review by this court. Additional reasons for this conclusion will be found in the concurring opinion in *State, ex rel. Vogt,*v. *Donahey, supra.*

It is argued in the majority opinion that its conclu*186sions must be sound because the arguments set forth in this concurring opinion were not advanced by counsel for either side. This requires no further answer than to state that the concurrence of counsel is not accepted as law.

It is further urged that if the power of removal is a political question, the Chief Justice would not have authority to select the judge to try such a case. Again I am compelled to disagree. The Constitution conferring the power to designate judges to serve in other jurisdictions makes no reference to the court. It is the judge who is assigned. The same language is found in Section 1687, General Code. The local judges had disqualified themselves, and the Constitution and the statute conferring the power to designate other judges in the place of those who are disqualified is no different from the designation of a visiting judge in a matter purely justiciable.

Reference has been made to *City of Zanesville*v. *Zanesville Telegraph & Telephone Co.,*64 Ohio St., 67, 59 N. E., 781, 52 L. R. A., 150, 83 Am. St. Rep., 725. That case was decided upon its own peculiar facts and has no bearing upon the principles which control the instant case.