Art. III.

The supreme

court.

The common pleas.

Criminal jurisdiction.

Probate and testamentary.

as the legislature may, from time to time, establish. (See Const. 1851, Art. IV, §1.)

(1) It is the right of the Legislature to enact laws, and the province of the courts to construe them. The Legislature has no power to enact law, declaring what construction or decision the court shall make upon acts under which rights and liabilities have already been acquired or incurred. As a law, such an act will be enforced; as a construction of previous acts, under which cases are already pending in the courts, it will be held void. Schooner Aurora Borealis v. Dobbie, 17 O., 127.

There may be, and there undoubtedly are, cases where it is proper, nay, where it is the duty of a court to refuse to enfore a statute, on the ground that it is inconsistent with the supreme law of the land. Yet this ought not to be done, unless the statute in question is a plain and palpable violation of the Constitution. It should be both against the letter and spirit of that instrument. So long as there is a doubt, the decision of the court should be in favor of the statute. McCormick v. Alexander, 2 O., 75. See Lewis v. Mc Elvain, 16 O., 354.

To an argument that a law was in contravention of the spirit of the Constitution, it was said: "This is rather dangerous ground to tread upon in determining the constitutionality of a law. We may all agree as to the reading of the Constitution, and generally as to its meaning; but when we come to talk of its spirit, it is a different matter. There is great danger that we shall conclude that spirit to be in accordance with our preconceived opinions or feelings of what it ought to be." State v. Cincinnati, 19 O., 178, 197.

It is the right and duty of the judicial tribunals to determine whether a legislative act, drawn in question in a suit pending before them, is opposed to the Constitution of the United States, or of this state, and if so found, to treat it as a nullity. In such case, the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority and a clear incompatibility between the constitution and the law appear, that the judicial power will refuse to execute it. C. W. & Z. R. Co. v. Clinton Co., 1 O. S., 77; 1 O. S., 105; 1 O. S., 153.

SEC. 2. The supreme court shall consist of three judges, any two of whom shall be a quorum. They shall have original and appellate jurisdiction, (1) both in common law and chancery, in such cases as shall be directed by law; provided, that nothing herein contained shall prevent the general assembly from adding another judge to the supreme court after the term of five years, in which case the judges may divide the state into two circuits, within which any two of the judges may hold a court. (See Const. 1851, Art. IV, § 2.)

(i) Pending a suit in the Common Pleas, the Supreme Court has no constitutional jurisdiction of a motion to dissolve an injunction therein, nor will a special legislative enactment confer jurisdiction upon that court, to prevent the operation of an injunction allowed by the Common Pleas, in a case of which that court has taken jurisdiction. Griffith v. Crawford Co., 20 O., 609.

SEC. 3. The several courts of common pleas, shall consist of a president and associate judges. The state shall be divided, by law, into three circuits: there shall be appointed in each circuit a president of the courts, who, during his continuance in office, shall reside therein. There shall be appointed in each county, not more than three nor less than two associate judges, who, during their continuance in office, shall reside therein. (1) The president and associate judges, in their respective counties, any three of whom shall be a quorum, shall compose the court of common pleas; which court shall have common law and chancery jurisdiction in all such cases as shall be directed by law: provided, that nothing herein contained shall be construed to prevent the legislature from increasing the number of circuits and presidents, after the term of five years. (Sce Const. 1851, Art. IV, §§ 3, 4, 12.)

(1) The Legislature may change the boundaries of a county, and when such change places an associate judge within the limits of another county, who does not within a reasonable time remove into the limits of a county for which he was appointed, he forfeits his office. State v. Choate, 11 O., 511; State v. Walker, 17 O., 135.

SEC. 4. The judges of the supreme court and courts of common pleas, shall have complete criminal jurisdiction in such cases and in such manner, as may be pointed out by law. (See also Const. 1851, Art. IV, § 4.)

The Constitution gives the judges of the Supreme Court power to take jurisdiction of such criminal cases as shall be pointed out by law, and to exercise it in such way as the law may point out. State v. Turner, Wright's Rep., 32.

SEC. 5. The court of common pleas in each county, shall have jurisdiction of all probate and testamentary matters, (1) granting administration, the appointment of guardians, and such other cases as shall be prescribed by law. (See Const. 1851, Art. IV, SS 4, 8.)

1802.

JUDICIARY.

Art. III.

(1) By this Constitution, exclusive jurisdiction in probate and testamentary matters is vested in the courts of common pleas, and the orders of those courts made in the progress of such matters cannot be reviewed in the Supreme Court upon certiorari. Matter of Gregory, 19 O., 357. See also Ewing v. Hollister, 7 O., 2 pt. 138.

SEC. 6. The judges of the court of common pleas, shall, within their Certiorari. respective counties, have the same powers with the judges of the supreme court, to issue writs of certiorari to the justices of the peace, and to cause their proceedings to be brought before them, and the like

right and justice to be done. (See Const. 1851, Art. IV, § 4.)

SEC. 7. The judges of the supreme court shall, by virtue of their Judges, conservaoffices, be conservators of the peace throughout the state. The presi- tors of the peace. dents of the courts of common pleas shall, by virtue of their offices,

be conservators of the peace in their respective circuits; and the judges

of the court of common pleas shall, by virtue of their offices, be conservators of the peace in their respective counties.

SEC. 8. The judges of the supreme court, the presidents and the Judges, how appointed, term of associate judges of the courts of common pleas, shall be appointed office, and sala(1) by a joint ballot of both houses of the general assembly, and shall ries. hold their offices for the term of seven years, (2) if so long they behave well. The judges of the supreme court, and the presidents of the courts of common pleas shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished. during their continuance in office; but they shall receive no fees or perquisites of office, nor hold any other office of profit or trust under the authority of this state or the United States. (See Const. 1851, Art. IV, S$ 12, 14.)

The Legislature may fill a vacancy that has happened or that is certain to happen before the meeting of the next General Assembly. State v. Choate, 11 O., 511.

Although this power of appointment is vested in both houses of the General Assembly, still the Constitution has not prescribed the particular manner in which it shall be exercised, except that it shall be by "joint ballot." This is left to be regulated by the legislative authority, and is regulated by joint rules of the two houses. An individual appointed by "joint ballot" cannot be deprived of the office by mistake of the clerks, for such mistake would be corrected by the bodies by whom they are appointed; nor by neglect of the speakers, nor in any other way except in the mode pointed out in the Constitution. State v. Moffat, 5 O., 358.

2

A law authorizing any other body than the General Assembly to appoint a judge for the term of seven years would be unconstitutional. State v. Moffat, 5 O., 358.

term, &c.

SEC. 9. Each court shall appoint its own clerk for the term of seven Clerks of courtsyears; but no person shall be appointed clerk, except pro tempore, who shall not produce to the court, appointing him, a certificate from a majority of the judges of the surpreme court, that they judge him to be well qualified to execute the duties of the office of clerk to any court of the same dignity with that for which he offers himself. They shall be removable for breach of good behavior, at any time, by the judges of May be removed. the respective courts. (See Const. 1851, Art. IV, § 16.)

SEC. 10. The surpreme court shall be held once a year, in each Terms of courts. county, and the courts of common pleas shall be holden in each county,

at such times and places as shall be prescribed by law.

The surpreme Court, under this Constitution, could direct a struck jury for the trial of a cause pending before it, in a different county from that in which the order was made. Seeley v. Blair, 6 O., 448.

Justices of the

SEC. 11. A competent number of justices of the peace shall be elected by the qualified electors in each township in the several counties, and peace. shall continue in office three years, whose powers and duties shall, from time to time, be regulated and defined by law. (See Const. 1851, Art. IV. § 9.) SEC. 12. The style of all process shall be, "The State of Ohio:" all prosecutions shall be be carried on in the name and by the authority of prosecutions and the State of Ohio; and all indictments shall conclude, "against the peace and dignity of the same." (See Const. 1851, Art. IV, § 20.)

Style of process→→

indictments.

Arts. IV, V.

ELECTIONS AND ELECTORS-MILITIA.

Const.

Who may vote.

By ballot.

Voters, when privileged from

arrest.

Forfeiture of elective franchise.

Who may vote.

How officers elected.

Same subject.

Same subject.

Same subject.

Same subject.

Same subject.

ARTICLE IV.

OF ELECTIONS AND ELECTORS.

SECTION 1. In all elections, all white male inhabitants above the age of twenty-one years, having resided in the state one year next preceding the election, and who have paid or are charged with a state or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election. (See Const. 1851, Art. V, §1.)

1. By the proper construction of the term "white male inhabitants," as used in this Constitution, all nearer white than black, or of the grade between the mulatto and white, are entitled to enjoy every political and social privilege of the white citizen. Jeffries v. Ankeny,11 O.,375. Where the Court of Common Pleas instructed the jury that a man who has any negro blood whatever is not a legal voter, it was held to be error. Thacker v. Hawk, 11 O., 376.

Youth of negro, Indian and white blood, but of "more than one-half white blood," are entitled to the benefits of the common school fund. Lane v. Baker, 12 ()., 237, following Gray v. State, 4 O., 353- See also State v. Cincinnati, 19 O., 197.

Children of a white mother and a father three-fourths white are white children, within the meaning of the school laws. Williams v. School District 6, Wright's Rep., 578.

SEC. 2. $ 2.)

SEC. 3.

All elections shall be by ballot. (See Const. 1851, Art. V,

Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest, during their attendance at elections, and in going to and returning from the same. (See Const. 1851, Art. V, $ 3.)

SEC. 4. The legislature shall have full power to exclude from the privilege of electing, or being elected, any person convicted of bribery, perjury, or any other infamous crime. (See Const. 1851, Art. V., § 4.)

SEC. 5. Nothing contained in this article shall be so construed as to prevent white male persons, above the age of twenty-one years, who are compelled to labor on the roads of their respective townships or counties, and who have resided one year in the state, from having the right of an elector. (See Const. 1851, Art. V, § 1.)

SECTION 1. Captains and subalterns in the militia, shall be elected by those persons, in their respective company districts, subject to military duty.

SEC. 2. Majors shall be elected by the captains and subalterns of the battalion.

SEC. 3. Colonels shall be elected by the majors, captains and subalterns of the regiment.

SEC. 4. Brigadiers general shall be elected by the commissioned officers of their respective brigades.

SEC. 5. Majors general and quartermasters general shall be appointed by joint ballot of both houses of the Legislature.

SEC. 6. The governor shall appoint the adjutant general. The majors general shall appoint their aids and other division staff officers. The brigadiers general shall appoint their brigade majors and other brigade staff officers. The commanding officers of regiments shall appoint their adjutants, quartermasters and other regimental staff officers; and the captains and subalterns shall appoint their non-commissioned officers and musicians.

1802.

CIVIL OFFICERS-MISCELLANEOUS.

Arts. VI, VII. SEC. 7. The captains and subalterns of the artillery and cavalry, Same subject. shall be elected by the persons enrolled in their respective corps; and the majors and colonels shall be appointed in such manner as shall be directed by law. The colonels shall appoint their regimental staff; and the captains and subalterns their non-commissioned officers and musi

cians.

ARTICLE VI.

OF CIVIL OFFICERS.

SECTION 1. There shall be elected (1) in each county, one sheriff and Sheriff and one coroner, by the citizens thereof, who are qualified to vote for mem- coroner. bers of the assembly: they shall be elected at the time and place of holding elections for members of assembly: they shall continue in office two years, if they shall so long behave well, and until successors be chosen and duly qualified: provided, that no person shall be eligible as sheriff for a longer term than four years in any term of six years. (Const. 1851, Art. X, § 1-3.)

(1) Laws requiring these officers to be commissioned, give bond, and take oath of office are not unconstitutional. State v. Moffat, 5 O., 358.

and auditor.

SEC. 2. The state treasurer and auditor shall be triennially appointed State treasurer by a joint ballot of both houses of the legislature.

SEC. 3. All town and township officers shall be chosen annually, by Town and townthe inhabitants thereof, duly qualified to vote for members of assembly, ship officers. at such time and place as may be directed by law. (See Const. 1851,

Art. X,

1.)

SEC. 4. The appointment of all civil officers, not otherwise directed Other officers. by this constitution, shall be made in such manner as may be directed by law.

ARTICLE VII.

OFFICIAL OATHS.

SECTION 1. Every person who shall be chosen or appointed to any Oath of officers. office of trust or profit, under the authority of this state, shall, before the entering on the execution thereof, take an oath or affirmation to support the constitution of the United States and of this state, and also an oath of office. (See Const. 1851, Art. XV, § 7.)

BRIBERY AT ELECTIONS.

SEC. 2. Any elector, who shall receive any gift or reward for his Bribery at vote, in meat, drink, money or otherwise, shall suffer such punishment elections. as the law shall direct; and any person who shall, directly or indirectly, give, promise, or bestow any such reward, to be elected, shall thereby be rendered incapable, for two years, to serve in the office for which he was elected, and be subject to such other punishment as shall be directed by law.

OF NEW COUNTIES.

presentation

SEC. 3. No new county (1) shall be established by the general assem- Extent of new bly, which shall reduce the county or counties, or either of them, from counties and rewhich it shall be taken, to less contents than four hundred square miles; therein. nor shall any county be laid off, of less contents. Every new county, as to the right of suffrage and representation, shall be considered as a

Art. VII.

Seat of govern

ment.

Of amendments to the constitution.

Boundaries of the state.

part of the county or counties from which it was taken, until entitled by numbers to the right of representation. (See Const. 1851, Art. 11, § 30.)

(Where the Legislature has erected a new county out of territory formerly belonging to other counties, and to compensate such counties for the loss of territory occasioned by the erection of a new county, has added territory to them from adjoining counties, it is competent for the Legislature to provide that the county receiving the accession of territory shall pay an equitable proportion of the indebtedness of the county from which such territory has been taken; and the provision of the statute creating the county of Auglaize, which requires Allen county to pay a portion of the debts of Putnam county, is valid. Putnam Co. v. Allen Co., 1 O., S., 322.

OF THE SEAT OF GOVERNMENT.

SEC. 4. Chillicothe shall be the seat of government until the year one thousand eight hundred and eight. No money shall be raised until the year one thousand eight hundred and nine, by the legislature of this state, for the purpose of erecting public buldings for the accommodation of the legislature. (See Const. 1851, Art. XV, § 1.)

OF AMENDMENTS TO THE CONSTITUTION.

SEC. 5. That after the year one thousand eight hundred and six, whenever two-thirds of the general assembly shall think it necessary to amend or change this constitution, they shall recommend to the electors, at the next election for members to the general assembly, to vote for or against a convention; and if it shall appear that a majority of the citizens of the state, voting for representatives, have voted for a convention, the general assembly shall, at their next session, call a convention, to consist of as many members as there be in the general assembly; to be chosen in the same manner, at the same place, and by the same electors that choose the general assembly; who shall meet within three months after the said election, for the purpose of revising, amending or changing the constitution. But no alteration of this constitution shall ever take place, so as to introduce slavery or involuntary servitude into this state. (See Const. 1851, Art. XVI, § 2.)

BOUNDARIES OF THE STATE.

SEC. 6. That the limits and boundaries of this state be ascertained, it is declared, that they are, as hereafter mentioned; that is to say: bounded on the east by the Pennsylvania line; on the south by the Ohio river to the mouth of the Great Miami river; on the west by the line drawn due north from the mouth of the Great Miami, aforesaid; and on the north by an east and west line drawn through the southerly extreme of Lake Michigan, running east, after intersecting the due north line aforesaid, from the mouth of the Great Miami until it shall intersect Lake Erie or the territorial line, and thence with the same, through Lake Erie, to the Pennsylvania line aforesaid; provided always, and it is hereby fully understood and declared by this convention, that if the southerly bend or extreme of Lake Michigan should extend so far south, that a line drawn due east from it should not intersect Lake Erie, or if it should intersect the said Lake Erie, east of the mouth of the Miami river of the lake, then and in that case, with the assent of the congress (1) of the United States, the northern boundary of this state shall be established by, and extended to, a direct line running from the southern extremity of Lake Michigan to the most northerly cape of the Miami Bay, after intersecting the due north line from the mouth of the Great Miami river as aforesaid, thence northeast to the territorial line, and, by the said territorial line, to the Pennsylvania line.

(1) In June, 1836, Congress passed an act fixing the northern boundary at a direct line drawn from the southernly extreme of Lake Michigan to the most northernly cape in the Maumee Bay, and thence intersecting the territorial line, and thence with the same to the Pennsylvania line. (See Const. 1851, Preamble and Note. And see also Daniels v. Stevens, 19 O., 222; Myers v. Manhat tan Bank, 20 O., 283.)