
    WAIVER BEFORE A JUSTICE OF THE PEACE OF TRIAL BY JURY.
    Common Pleas Court of Montgomery County.
    Otto H. Foster v. The State of Ohio.
    Decided June 27, 1927.
    
      Jurisdiction — Not Conferred on Justices of the Peace By Wavier of Jury Trial — Due Process of Law Not Vouchsafed — Where Trial Is Had Before a Court Financially Interested in the Outcome.
    
    1. When there may be an inference from the record that there was a compromise in the matter of the judgment rendered by a justice of the peace, a grave question arises as to whether the judgment debtor may prosecute error; but inasmuch as such a settlement is not conclusively shown by the record in the case at bar, the court permits the proceeding in error to stand.
    2. The disqualification of a magistrate, who has a direct, personal, substantial, pecuniary interest in reaching a conclusion adverse to an accused person arraigned for trial before him, is jurisdictional and is not removed by a waiver by the accused of his right to trial by a jury.
   Snediker, J.

This case is on error to the judgment of a justice of the peace of Butler township this county. The plaintiff in error was charged in the court below with the violation of Section 12603-1 of the General Code of the state of Ohio. This section provides against the unlawful operation of an automobile on the public roads or highways of the state. The transcript of the docket of the justice of the peace shows that “the plaintiff in error pleaded not guilty upon his arraignment” in that court; that subsequently “defendant signed a jury waiver and had a trial.” That thereupon witnesses were sworn and the court after hearing the testimony found the defendant guilty and sentenced him to pay a fine of ten dollars and ten dollars costs; that of this fine $5.00 were suspended. Five dollars fine and ten dollars costs were then paid by the defendant. Inferentially, but not conclusively, this record shows that there was a compromise and settlement of the judgment rendered in the magistrate’s court. If there was, then there is a grave question as to whether or not the plaintiff in error may prosecute error here. 131 Cal., p. 639; 54 Kan., p. 108; 107 N. Y., p. 577.

But since there is no definite statement of compromise in the record before the magistrate we regard it as our duty to take up the questions submitted by counsel on the hearing.

The petition in error, among other things, complains:

“That Charles H. Borchers as justice of the peace had no jurisdiction over the subject-matter of said action.”

In support of this, counsel for plaintiff in error contended that a waiver of a trial by jury filed with a justice of the peace did not have the effect to give him the right to try, convict and sentence the plaintiff in error. The sections of the code which are in point on this objection follow:

Section 13511. “When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, for his appearance at the proper time and before the proper court; otherwise he shall discharge him from custody. If the offense charged is a misdemeanor and the accused, in a writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, he may render final judgment.”

It is urged that this last sentence of Section 13511, does not warrant a justice of the peace after the waiver of a jury trial in taking testimony and administering a fine to a defendant found guilty of a misdemeanor for which there is not by law a penalty of imprisonment, because there is no provision for a jury in a magistrate’s court in such a cause. Section 13432 which requires a jury before a justice of'the peace is only effective “when imprisonment is part of the punishment:” But we do not understand that a jury which a defendant waives under Section 13511 is a jury in a magistrate’s court.

The duty of the justice of the peace.under this section is, unless a jury is waived, if he finds probable cause to believe that a defendant is guilty, to bind him over to the proper court; and if that with which he is charged' is a misdemeanor, to bind him over to the Probate Court. In the Probate Court a defendant by Section 13452 of the General Code, may, if he so demands, have a trial by jury; and the probate judge can only try the case himself “if a defendant does not demand trial by jury.” When a defendant before a magistrate, file's as did this defendant here, a writing subscribed by him waiving a jury, he then waives the right on being bound over to the Probate Court to demand a jury in that court; and that being all the right he had to a jury, the legislature gives the justice of the peace power to proceed with his case. So that we find,, as did the. Attorney General in his opinion, that a jury waiver under the provisions of 13511 is effective to entitle the justice of the peace to proceed; and if there were no other question in the case, Squire Borchers was within the law when, after a waiver of trial by jury, he heard the testimony, and made his finding and rendered his judgment. But there is another consideration-before we can finally say that' the court below had the right to proceed.

In the opinion of June 6, 1927, sent out of the Attorney General’s office the following language is used:

“It is my opinion that by filing such a waiver, the defendant voluntarily submits his person to the jurisdiction of the court, The decision of the United States Supreme Court in the case of Tuney v. State of Ohio would not apply in such a case because the defendant, by his own act, waives any objection that he might have made to the qualification of the magistrate that may exist because of pecuniary interest to hear and determine the cause. The court having both jurisdiction of the subject-matter and of the person of the defendant could therefore render final •judgment.”

In the case of Schick v. United States, found in the 195 U. S., at page 65, the Supreme Court of the United States in that case discussing the waiver of a right to trial by a jury say:

“When there is no constitutional or statutory mandate and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.”

In deciding the Turney case Judge Taft analyzed and defined that provision of the 5th, and 14th Amendments of' the Federal Constitution which relate to due process of law. These read so far as is necessary for our case as follows:

. Article 5. “Nor shall any person be deprived of life, liberty or property without due process of law.”
Article 14. “Nor shall any state deprive any person of life, liberty or property without due process of law.”
“In a case involving a federal question, that is, one arising under the Constitution, laws, or treaties of the United States, the. courts of the states will be imperatively bound to follow the decisions of the Supreme Court of the United States, if any are found to be applicable to the case on trial, overruling, if necessary, their own previous decisions to the contrary.”
“Equally conclusive and binding on the eourts of the several states are the decisions of the United States Supreme Court upon the question of what constitutes 'Due process of law’; and
“Whether or not the operation of state laws or municipal ordinances, or the administration of civil, and criminal justice in the state courts, or the action of executive boards and officers, has the effect of depriving the citizen of life, liberty, or property contrary to the law of the land.”
“Whether any proceedings by which the citizen is deprived of liberty or property, or the laws on which they are founded, constitute due process of law, is a federal question, upon which the courts of the United States are not bound to follow the decisions of the state courts.”

Black’s Law of Judicial Precedents, pages 336, 345, 609.

The 5th and 14th Amendments to the Constitution of the United States are a mandate and involve an important public policy, and as such may not be waived by an accused who is on trial.' It may be true that in such a waiver a defendant would submit his person to the jurisdiction of the court; but it has been decided that jurisdiction of the court over a person refers to the power of the court over a person and not to the regularity of the proceedings. Due process of law is a question of regularity, and is so treated by the Supreme Court of the United States in the case of Hager Appt. v. Reclamation District No. 108, 111 U. S., page 701. It is therefore difficult for us to see how the waiver of a jury trial by this plaintiff in error in the court below qualified that court to act if there was a violation of due process of law as discussed by Chief Justice Taft in the Turney case.

In the case of Arnold v. State of Ohio, recently decided by us, we referred to the language of Chief Justice Taft in the Turney case where he says:

“It certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”

And we found that this language was applicable to a justice of the peace acting under the enactments of the legislature in this state. We further found by reference and quotations from numerous authorities that the question decided by Judge Taft was a jurisdictional one. These authorities are as follows:

“Due process of law does not mean a proceeding pursuant to any statute the legislature may enact, regardless of its validity, but means the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights, one of the foremost of which is an impartial tribunal for the adjudication of such rights.” 233 Ill. Reports, page 417.
“The cases in this country and in England are numer-. ous, where the judgment and proceedings of courts and various tribunals have been set aside on the ground of such interest. And in a modern case in England, where the Lord Chancellor, who was a shareholder in a company, in whose favor the Vice Chancellor had- rendered a decree, affirmed the decree, it was reversed by the House of Lords, on that ground, though there was not the slightest reason for believing that his action was influenced by that interest, or that it was present in his mind.” Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases 759.
“And in a court composed of several justices of the peace, if one of them be interested in a proceeding before them, in which he acts at all, the judgment or determination will be void, though there was a majority in favor of the decision without counting the interested justice.” See Queen v. Justices of Hertfordshire, 6 Q. B., 753; also Queen v. Justices of Suffolk, 18 Q. B., 416; Queen v. Justices of London, 1b. 421; and see Cooley’s work on Constitutional Limitations, 410 to 413, where the authorities are collected and the result fairly stated.
“It has also been held that this objection is not waived by the neglect of a party to take advantage of it, on the first opportunity. But it may be raised in the Appellate Court for the first time.” Richardson v. Welcome, 6 Cush., 322; Dimes v. Proprietors, etc., 3 House of Lord’s Cases, 787; and see Sigourney v. Sibley, 21 Pick., 106.

20 Mich., pages 18-25.

“That the interest of the Probate Court Judge in a claim against the estate of a deceased person which was being administered in his court disqualified him to act, and that the question was one of jurisdiction.” 21 Pickering, page 101.
“It is a sufficient ground for dismissing an action pending in the court of common pleas, or an appeal from a justice of the peace,, that the justice had an interest in the suit, and instigated the prosecution of the same; although the motion to dismiss is not made until the case is opened to the jury, and the ground of the motion was known to the defendant and his attorney four days before.” Richardson v. Welcome, 6 Cushing Rep., p. 331.
“The first idea in the administration of justice is that á judge must necessarily be free from all bias and partiality. He cannot be both judge and party, arbiter and advocate, in the same cause.
“Mankind are so agreed in this principle, that any departure from it shocks their common sense and sentiment of justice. It was long ago reported on the authority of Holt, that the mayor of Herfford was laid by the heels for sitting in judgment in a cause when he himself w.as lessor of the plaintiff in ejectment, although he, by the charter, was sole judge of the court. (Salk, 396.)
“No information has reached us at this day tending to show that the treatment which the mayor received on this occasion was deemed too severe by his contemporaries, although his apology, to-wit, that he was sole judge of the court, has been held by some modern judges to excuse them for determining upon matters and causes in which their relations were parties or were interested. But it seems to me far better, that causes as to which the sole judge of a court is presumed to be biased in favor of one of the parties should remain undetermined until the legislature should provide an appropriate tribunal for their decision, than that the principle which demands complete impartiality in a judge should ever be violated. The urgency of a particular case is not so much to be regarded as the elevation and honor of courts of justice, whose dignity and purity constitute a main pillar of the state.” Oakley v. Aspinwall, 3rd, N. Y., p. 547.

Cooley in his work on Constitutional Limitations, says:

“Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate court; and the suit may there be dismissed on that ground. The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdiction.”

If the justice of the peace in the case at bar, acted without jurisdiction because of a violation of the due process provision of the Federal Constitution as defined by Judge Taft, then as has 'been decided by the Supreme Court of Ohio in several of its opinions, it became his duty upon so finding himself without jurisdiction to strike the case from his docket.

In view of. the foregoing our opinion is that the judgment of the justice of the peace ought to be reversed, which is accordingly done.  