
    CRIMINAL LAW — COURTS—OFFICE AND OFFICERS — MAGISTRATES.
    [Belmont (7th) Circuit Court,
    June Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    State of Ohio v. William T. Hance.
    1. Jtjeisdiction or President or Council as Acting Mayor of Village.
    The president pro tem of a village as acting mayor, under Sec. 1536-864 (4 ed.) Rev. Stat. (96 O. L. 83, Sec. 200), has no jurisdiction to hear and determine a misdemeanor.
    2. Circuit Court Cannot Reverse Judgment Discharging Accused in Criminal Case.
    The circuit court has no jurisdiction to hear a petition in 'error filed by the state in a criminal case to reverse the judgment of the court of common pleas, discharging the accused.
    ERROR to Belmont common plea's court.
    Smith & Howard, for plaintiff in error:
    The president pro tem, as acting mayor, is an officer de facto, and his decisions cannot be collaterally impeached. State v. Gardner, 54 Ohio St. 24 [42 N. E. Hep. 999; 31 L. E. A. 660]; Strang, Ex parte, 2'1 Ohio St. 610; Gitsky v. Newton, 9 Circ. Dee. 682 (17 E. 484) ; State v. Bingham, 7 Circ. Dec. 522 (14 E. 245).
    The municipal code conferred judicial power upon the president pro tem of the council as acting mayor. Section 1831 Eev. Stat. as amended 95 O. L. 354; Sees. 1536-773a, 1536-854, 1754 Eev. Stat.
    E. T. Petty, for defendant in error:
    Section 200 of the new municipal code merely undertakes to clothe the president pro tem of the council with power to perform the executive, and not the judicial duties of the mayor, in the.cases referred to in said section.
    The powers of municipal corporations are classified by the new code under three different heads; executive, legislative and judicial. The executive power begins with Sec. 128, the judicial powers with Sec. 190, and the legislative power with See. 193.
    Section 200 is found under the chapter on executive powers, and all the powers referred to therein are purely executive and in no way refer to his judicial duties or powers.
    Section 1837 Eev. Stat. was not repealed by ,the new code, and confers the power to designate some justices of the peace to perform the duties of the mayor during the latter’s .absence or disability.
    
      While quo warranto is a proper proceeding to try title to office, it. is not the only remedy. France v. State, 57 Ohio St. 1 [47 N. E. Rep. lOil]; ’Flaiatr V. Mansfield‘(Yil.'), 7 birc. Dee. 39' (14' R.’592) ; Heck v. State, 44 Ohio St. 536 [9 N. E.’ Rép. 305]; Lloyd v. Dollisin, 13-23 O. C. C. 571; Logan Branch Bank, Ex paite, 1 Ohio St. 432; State v. MeGehan,, 27 Ohio St. 280; Hatch v. St. Clair, 1 Gire. Dec.'421 (2 R. 163); High,, Extra. Leg. Rem..Sec.-618; State y..Riley. Tp. (Bd. of Ed.) 3 Circ. Dee.. 703 (7 R. 152).
    The legislature’ could, not confer judicial powers upon a ministerial officer. Article 4, Secs. 1; 10, Const.; Logan Branch Bank,- Ex parte, 1 Ohio St. 432, 433, 434.
    Judicial power. State v. Harmon, 31 Ohio St. 250, 259, 260; Musser v. Adair, 55 Ohio St. 466, 472, 473 [45 N. E. Rep. 903] ; De Camp v. Archibald, 50 Ohio St. 618,‘ 624, 625 [35 N. E. Rep. 1056; 40 Am. St. Rep. 692] ; State y. Guilbert, 56 Ohio St. 575, 627, 628, 629' [47 N. E. Rep. 551; 38 L. R¡. A. 519; 60 Am. St. Rep. 756]; France v. State, 57 Ohio St. 1 [47 N. E. Rép. 1041] ; Van Slyke' v. Insurance Co, 39 Wis. 390 [20 Am. Rep. 51] ;■ 8 Cyc; 858;'Gough v. Dorsey, 27 Wis. 119; Wright v. Wallbaum, 39 Ill. 554.
    . The right- of a’ defendant to’ prosecute érror after pleading guilty is sustained in the base of Hogue v. State, 13-23 O. C. C. 567. ■
   COOK, J.

An affidavit was filed before the mayor of the village of Barnesvill© charging the defendant in error, William T. Hance, with unlawfully furnishing intoxicating liquors to a party named in the affidavit within the village of Barnesville, where such furnishing was prohibited under the provisions of the statutes known as the Beal act. When the accused was arraigned he objected to ’being tried before the mayor, for the reason that the mayor was biased and prejudiced; that he had been an eyewitness to the transaction upon which the state relied for conviction, and had expressed an-opinion from such personal observation of the transaction, that the accused was guilty.

Thereupon the mayor Considering himself disqualified, transferred all the papers in the case to the president pro tem of the council of the village, with instructions to hear and determine the case. When the case came ón for trial befor'é the president pro tem'oí the council the accused objected in due form to his proceeding in the case, for the reason that’he had no. jurisdiction in'the matter. This-objection was overruled,"to "which the accused excepted; and in' Order to save the expensé of' a trial he entered'a pléa of guilty' and was 'fined- $75 and costs. The-accused then filed a petition in error in the court of common pleas to> reverse the judgment, assigning as cause for such reversal, that the president pro tem of the council had no jurisdiction of the case. The' court of common pleas on this ground reversed the judgment and discharged the accused. The state now prosecutes error in this court to-reverse the judgment of the common pleas court.

The sole question made is: Had the president pro tem of the council jurisdiction to hear and determine the case upon a plea of guilty? It is claimed that he had; and in support of this claim Sec. 1536-854-(4 ed.) Rev. Stat., (96 O. L. 83, Sec. 200) is invoked. That section,, after providing for the election, term, qualifications and duties of the; mayor, in the second paragraph provides as follows:

“When the mayor is absent from the village, or is unable for any cause to perform his duties, the president pro tem of council shall be acting mayor. In case of the death, resignation or removal of the mayor, the president pro tem of council shall become the mayor and serve for the unexpired term, and until the successor is elected and qualified; and the vacancy thus created in council shall be filled as other vacancies therein, and council shall elect another president pro tem from their own number, who shall have the same rights, powers and duties as his predecessor.”

•Does this provision of the statute clothe the president pro tem of council with authority to hear and determine a case of this character? The affidavit charges a misdemeanor and See. 1824 (1536-876, 4 ed.) Rev. Stat. provides that the mayor of an incorporated village “shall have final jursdiction to hear and determine any prosecution for a misdemeanor, unless the accused is by the constitution entitled to a trial by juryand his jurisdiction in such cases shall be co-extensive with the county. ’ ’ This was a prosecution in which the accused was not, under the constitution, entitled to demand a trial by jury, therefore, the mayor would have final jurisdiction, and it is insisted that the president pro tem of the council, as acting mayor, would have- the same jurisdiction as the mayor.

It will be observed that Sec. 1536-854 (4 ed.) Rev. Stat. (96 O. L. 83, Sec. 200) is found in chapter two, which provides for the executive powers and duties of the officers of the village, and the first part of the section sets forth such duties of the mayor as are primarily ministerial. Chapter three provides for the judicial powers of the mayor and police courts, and in that chapter we find no provision that the president of council, as'acting mayor, shall possess any judicial powers whatever. "Mayors and justices óf tbe peace are elected by the people for the"-purpose of exercising judicial functions to a limited extent. Presidents pro tem óf coürfcils are not elected by the people, but appointed by council to. perform Certain specified duties. The judicial -powers of justicés of the peace to hear and determine criminal prosecutions with jurisdiction coextensive with the county, is a high -prerogative, and we 'do not think a member of council, who was not elected with any expectation that he would perform such important judicial functions, shoiild be held to be clothed with such power, unless the statute expressly so provides; and that all that was intended by the provision was, that in the absence of the mayor from the village, Or his inability for any cause to perform his duties, the president pro tem of council should then be noting mayor and discharge the ministerial duties of that office.

In Sec. 1837 (1536-773a, 4 ed.) Rev. Stat. it is provided that “in .<clties having no police judge, in the absence or during the disability of the mayor, he may designate a justice Of the peace to perform his duties in criminal matters, which justice shall, during the time, have the same -power and authority as the mayor.” We are not prepared to say, ás (Claimed by counsel, that this provision applies to villages. This provision, however, should have some effect in construing the section under consideration. The president pro tem of council of cities has the same powers as in, villages, when the mayor is disqualified from acting. The provisions as to cities and villages are very similar. Section 1774 (1536-664, 4 ed.) Rev. Stat. Why, then, should'the mayor of a city be required to call in a justice of the peace, in a city having no police ' judge, to perform his duties in criminal cases? Thé president pro tem of council could perform the duties as well in cities ‘as villages, but in cities he is deprived of that power. From these considerations We are persuaded that the president pro tem of a council of a village has not jurisdiction to hear and determine a prosecution for a misdemeanor.

This view is strengthened by the decision in case of Logan Branch Bank, Ex parte, 1 Ohio St. 432. On page 434 Judge Corwin says:

“It is not within the competency of the legislature to clothe with judicial power any officer or person, not elected as a judge.”

We aré not unmindful of the fact that police judges may be ‘appointed by council, and justices of 'the 'peace mky be appointed by the trustee's of the township to fill out unexpired terms, but they are appointed for the express purpose of exercising -judicial powers and by express authority of the general assembly.

We have said this much for the reason that'this was the 'only pilestion made in the case. However, this was entirely unnecessary,. as this court has no jurisdiction in this proceeding in error. The action, of the court of common pleas was a complete and final determination of thp case in favor of the accused. It held, as we have said, that the president of council as acting mayor had no jurisdiction, and discharge^ thp accused. That ended the case. Error cannot be prosecuted by th,e state from a judgment of a court having jurisdiction of a criminal case where the accused is discharged, in the absence of statutory authority for such proceeding. State v. Simmons, 49 Ohio St. 305 [31 N. E. Rep, 34]; State v. Bour, 4 Circ. Dec. 4 (10 R. 58).

There is no warrant in the statutes for such prosecution of error bj the state, and the petition in error will therefore be dismissed for want of jurisdiction in this court, at the costs of plaintiff in error.

Laubie and Burrows, JJ., concur.  