#### The State, ex rel. Stanley, *v.*Bernon et al., Board of Elections of Cuyahoga County.

(No. 24431

Decided October 27, 1933.)

*205
      *Mr. Bartlett C. Shepherd,*for relatrix,

*Mr. Frank T. Gullitan,*prosecuting attorney, and *Mr. E. P. Westenhaver,*for respondent.

Weygandt, C. J.

The first question presented is whether the relatrix has mistaken her remedy in asking relief in the form of a writ of prohibition.

This court is of the view that there is little difference between the principles involved in this case and in the cases of *State, ex rel. Patton,*v. *Myers, Secy. of State, ante,*95, 186 N. E., 872, and *State, ex rel. Donnelly,*v. *Myers, Secy. of State, ante,*104, 186 N. E., 918. It is of course true that in the latter cases the respondent was the secretary of state, instead of a board of elections ; but it is equally apparent that in many respects a board of elections exercises authority similar to that *206of the secretary of state. That is the situation in the instant case.

The second question presented involves the validity and operation of the charter and the nature of the office of judge of such police court.

It is the contention of the relatrix that all the provisions of Article VI of the Charter are inoperative and unconstitutional, by reason of the decision of this court in the case of *State, ex rel. Cherrington, Pros. Atty.,*v. *Hutsinpiller,*112 Ohio St., 468, 147 N. E., 647, to the effect that municipalities of this state have no power, by charter or otherwise, to create courts, inasmuch as such exercise of power contravenes Sections 1 and 10 of Article IV of the Constitution of Ohio. With this view the respondents are in accord, but they insist that the situation is controlled by the general provisions of Article VII of the Charter, relating to the nomination and election of candidates for any elective office. The exact language is as follows: “Candidates for any elective office shall be nominated only by petition.” This article contains the further provision that such petition shall not be signed by any electors more than sixty days prior to the day of such election, and such petition shall be filed with the election authorities prescribed by general law not less than forty days previous to the day of such election. However, it is contended by the relatrix that these general provisions of the charter are inapplicable, and that the situation is controlled by the general provisions of the statutes relating to elections. Section 4785-92, General Code, requires that: “Nominating petitions of candidates shall be filed with the same election authorities as is provided for the filing of declaration of candidacy, not *later than 6:30 p. m. on the sixtieth day prior*to the date of election.”

The five candidates involved in this action have filed their nominating petitions under the charter, and are *207not entitled to have their names placed on the ballot if the statutory provisions apply.

That municipalities in this state have authority to provide by charter for the nomination of their elective officers requires no other citation of authority than the frequently cited case of *Fitzgerald et al., Board of Deputy State Supervisors, etc.,*v. *City of Cleveland,*88 Ohio St., 338, 103 N. E., 512, Ann. Cas., 1915B, 106. In paragraph 2 of the syllabus appears the following language:

> “Under Sections 3 and 7, Article XVIII, as so amended, municipalities are authorized to determine what officers shall administer their government, which shall be appointed. and which elected, that the nomination of elective officers shall be made by petition by a method prescribed, and elections shall be conducted by the election authorities prescribed by general laws.”

Likewise, in the case of *State, ex rel. Taylor,*v. *French,*96 Ohio St., 172, 117 N. E., 173, Ann. Cas., 1918C, 896, the second paragraph of the syllabus contains the following statement: “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.”

Furthermore, in the case of *State, ex rel. Frankenstein,*v. *Hillenbrand,*100 Ohio St., 339, 126 N. E., 309, Judge Robinson used the following clear and inescapable language: “Whatever difficulty this court may have encountered in accurately designating the subjects comprehended in ‘local self-government,’ as contradistinguished from ‘local police, sanitary and *208other similar regulations/ it has had no difficulty in arriving at the conclusion that the qualification, duties and manner of selection of officers, purely municipal, come within the purview of the provision granting a city ‘local self-government.’ ” Then follows more than a page of discussion in which he cites, quotes and approves the *Fitzgerald case, supra.*

In paragraph 1 of the syllabus the rule is summarized as follows: “Section 7 of Article XVIII of the Constitution of Ohio vests in cities adopting a charter the power to prescribe the manner of the selection of their own purely municipal officers.”

It is worthy of note that among the judges who concurred in this unanimous decision was Judge Donahue, who dissented in the *Fitzgerald case, supra.*

When it is remembered that the broad language of Article VII of the Charter requires candidates for *any*elective office to be nominated *only*by petition, there can be no doubt as to its application to all elective officers, including police judge. However, the relatrix insists that the provision is inapplicable because a police judge is a state and not a municipal officer. She lays particular stress upon the fact that the court here involved is now a creature of the statute. Neither she nor the respondents cite Ohio authority with reference to this contention. Nevertheless, in 28 Ohio Jurisprudence, 302, appears the statement that “a judge of a municipal court is a municipal and not a state officer.” Likewise in the case of *State, ex rel. Thompson,*v. *Wall, Dir. of Finance,*17 N. P. (N. S.), 33, 28 O. D. (N. P.), 631, it was held that a judge of a municipal court is a municipal and not a state officer. Of course this is a decisión of a *nisi prius*court, but the cogency of its reasoning and the recognized authorities upon which it relies entitle it to consideration, especially, in view of the fact that the judgment was. affirmed by the Court of Appeals. Of the same import are two decisions cited by the *209respondents. In the case of *Franklin*v. *Westfall,*273 Ill., 402, 112 N. E., 974, it was held that a judge of a city court is an officer of the city, as distinguished from a state or county officer. In *Buckner*v. *Gordon,*81 Ky., 665, a police judge was held to he a city officer whose election was governed hy the charter.

In conformity with the foregoing views the writ is denied.

*Writ denied.*

Allen, Stephenson, Bevis and Zimmerman, JJ., concur.

Jones and Matthias, JJ., concur in propositions 1 and 2 of the syllabus, but dissent from propositions 3 and 4, and from the judgment.

Jones, J.,

dissenting. The crucial question is, Are nominations by direct primaries or petition for municipal officers controlled by city charters or by state law? The majority holds that such nominations are governed by the provisions of the charter and that the state law does not control. In so doing they ignore entirely the provisions of Section 7, Article Y, of the state Constitution, which was adopted in 1912 at the same time that the home rule provisions for self-government of cities were adopted. Nowhere in the home rule provisions does the term “nominations” appear. On the other hand, when the people of Ohio, in 1912, adopted the home rule provisions, they also adopted the following provisions of the Constitution: Article V, Section 7: “All nominations for * * * municipal offices shall be made at direct primary elections or by petition as provided by law.”

By this provision of the Constitution the state reserves to itself the direct control over the methods of nominations, whether made by primary election or by petition. Touching this particular feature the majority-opinion cites paragraph 2 of an alleged syllabus in the *210case of *Fitzgerald*v. *City of Cleveland,*88 Ohio St., 338, 103 N. E., 512, Ann. Cas., 1915B, 106. An inspection of that case discloses that the so-called syllabus was not adopted by a majority of the court, and- cannot therefore be recognized as the law of the court under our system of jurisprudence. That case was decided on August 26, 1913, when this court was composed of but six judges; Chief Justice Nichols having been made a member of this court in the following September. The three judges who concurred in the opinion, although disagreeing among themselves, were Johnson, Wanamaker and Wilkin. The three dissenting members were Donahue, Shauck and Newman. The dissenting opinion written by Judge Donahue, and concurred in by Judges Shauck and Newman, is absolutely unanswerable, and I quote from page 393 of that opinion as follows: “This purpose of the people and of the constitutional convention found expression in Section 7 of Article Y, which provides, among other things, that ‘All nominations for elective state, district, county and *municipal*offices shall be made at direct primary elections or by petition as provided by law.’ ** *** ' The language of this amendment is so plain, positive and direct that it needs no construction. By its express terms it applies not only to the state, to districts and counties, but also to every municipality in the state, and it is not the province of a court to read into this amendment the words ‘except in cities that have adopted a charter' providing for other methods of nomination,’ no matter if the court is of the opinion that these words should have been written therein. Any refusal on the part of the court to enforce any provision of the constitution of a state, or to change or alter its plain and unambiguous terms, is a clear usurpation of authority. The constitution itself provides the means and method by which it may be amended and it is needless to say the method so provided is not by judicial construction. ’ ’

*211If the power granted to home rule cities in respect to nominations is all-inclusive, it could as well be argued that city charters could provide that nominations for municipal officers could be made by conventions, or by some other method than by primary election or petition. In principle, this must be the legal logic of the majority from which it cannot escape and with which we disagree.

I have not quoted all of the provisions of Section 7, Article Y-. That section also contains a provision that:

> “Direct primaries shall not be held for the nomination * * * for the officers of municipalities of less than two thousand population, unless petitioned for by a majority of the electors of such township or municipality. ’ ’

By a parity of reasoning, if a city charter contravened that provision of the Constitution under the so-called implied power of self-governing cities in respect to nominations, under the principle upheld by the majority this court would be compelled to hold that the charter provisions governed and that those constitutional provisions did not. However, in 1922, five members of this court (Chief Justice Marshall and Judge Wanamaker, dissenting) held that the last-quoted provision of the section under consideration lodged the power controlling nominations in the General Assembly, the first paragraph of the syllabus reading as follows: “The power to provide for all nominations for elective municipal officers of municipalities of 2,000 population and more was delegated to and lodged in the general assembly upon the adoption of Section 7, Article V of the Constitution of Ohio adopted September 3, 1912.” *State, ex rel. Conner,*v. *Noctor et al., Bd. of Elections,*106 Ohio St., 516, 140 N. E,, 878.

The case of *State, ex rel. Frankenstein,*v. *Hillenbrand,*100 Ohio St., 339, 126 N. E., 309, is referred to. That case did not decide the question here involved. *212The controlling point to which we all agreed is found in the second paragraph of the syllabus. That merely decided that the city of Cincinnati had the power to designate the term of office which the mayor should hold. The question relating to the method of nominations was not decided, nor was Article Y, Section 7 of the Constitution, alluded to. The syllabus of the case must be read and applied in the light of the peculiar facts and questions presented and considered by the court. That point has frequently been decided by this court as shown by the numerous cases cited in volume 11, Ohio Jurisprudence, page 798.

The most recent decision of this court upon that feature is contained in the case of *Baltimore & O. Rd. Co.*v. *Baillie,*112 Ohio St., 567, 148 N. E., 233, the second paragraph of the syllabus reading as follows: “The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found in such^case.” Judge Robinson’s concurrence in the later case, *State, ex rel. Conner,*v. *Noctor, supra,*clearly shows that he regarded *nominations*for municipal offices under the provisions of Article Y, Section 7, of our Constitution, as not falling within the category of other powers granted to charter cities under the self-government provisions of. our Constitution.

It is needless to pursue this subject further except to say that when the people adopted, at the same time, home rule .provisions for the government of cities and also the provisions of Article Y, Section 7, relating to nomination of municipal officers, the Constitution retained control in the state over the power, means, and methods of nomination of municipal officers by primary election and petition; to hold otherwise, as stated by Donahue, J., in his quoted opinion, would be but a clear usurpation of authority by this court if we refuse to *213adhere to the plain and unambiguous terms of the Constitution itself. While we agree with the feature of the majority opinion relating to the remedy, we disagree with the proposition that the smaller unit — the city — can by charter assert the power to control nominations, which the state has distinctly controlled by clear constitutional and statutory provisions.

Matthias, J., concurs in the dissenting opinion.