
    JONES LOCAL OPTION LAW — REVIEW ON ERROR.
    [Franklin (2nd) Circuit Court,
    October, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    Jones Local Option Law, In re Rehearing
    1, Pasties to Review or Proceedings under Jones Local Option Law.
    Where a review is desired, of proceedings under the Jones local option law (98 O. L. 68), the qualified, elector who feels aggrieved should appear as plaintiff and the mayor of the municipality in question as the defendant in error.
    2. Powers or Judges in Chambers must be Expressly Granted by Statute.
    Inasmuch as no express authority is given the judges of the circuit court in this statute, Sec. 12 of act 98 O. L. 68; Lan. 7293a; B. 4364-301, or in any statute to grant leave to file a petition in error in vacation at chambers, a petition filed at such a time and by such leave must be stricken from the files.
    [Syllabus approved by the court.]
    Error to Franklin common pleas court.
    Addison & Addison, Gumble & Gumble and C. C. Williams, for plaintiff in error.
    W. B. Wheeler, for defendant in error.
   WILSON, J.

In these eases it is sought to obtain a review in this court, of the proceedings before the officers with whom the petitions were filed, and by whom the order was made in pursuance to the provisions of the act popularly known as the Jones local option law, 98 O. L. 68 (Lan. 7283a et seq.; B. 4364-30a et seq.). The provisions for review are found in Sec. 12- of that act. It is therein provided that,

“Any person being a qualified elector of any residence district of any municipal corporation wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated. The motion shall not be granted unless for good cause shown. If such motion is granted, a petition- in error shall be filed within fifteen days after the finding or decision of the mayor or judge setting forth the errors complained of. The circuit court upon the filing of such petition shall forthwith issue a summons addressed to the mayor of such municipal corporation, notifying him of the filing of the petition in error and directing him to appear in said court on behalf of said residence district at the time mentioned in the summons, which time shall not be more than thirty days after the finding or decision of the mayor or judge nor less than ten days after the filing of such petition. The circuit court shall have final jurisdiction to hear'and determine the merits of the proceedings and there shall be no appeal or error proceedings allowed from such decision. ’ ’

The cases are all submitted upon the question as to whether they are properly in court, and for a determination of the character of the proceedings here, if the petitions in error are found to be properly filed.

As preliminary to the conclusion we have evolved out of the obscurity of the statute, it may be said that the proceedings are not properly entitled in this court. The qualified elector who feels aggrieved should appear as the plaintiff in error, and the mayor of the municipality in question as the defendant jn error.

In each of the eases the leave to file the petition in error was granted by two of the judges of the circuit court sitting at chambers. The circuit court of Franklin county was in vacation at the time, and no term of the court was to be holden until long after the expiration of the fifteen days in which the petition in error must be filed. Did the judges of the court have power at chambers to grant the leave to file the petition in error ? The constitution provides: ‘ ‘ The several judges of the supreme court, of the common pleas, and such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers or otherwise, as may be directed by law.” Article IY, See. 18 Ohio Const.

“The general doctrine is, that all judicial business must be transacted in court, whether there be any express direction to that effect or not; and that such business as may be transacted out of court is exceptional and must find express authority in statute.” 4 Enc. Pl. & Pr. 337, and authorities there cited.
“It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no order in vacation except such as are expressly authorized by statute.” Blair v. Reading, 99 Ill. 600.

No express authority is given the judges in the statute in question,, or in any statute, to grant the leave to file the petition in error in vacation at chambers. The petitions in error were, therefore, filed without authority of law and will be stricken from the files.

The other questions raised must be reserved until a proceeding in error has been properly instituted. The question whether the provisions for review are defective and void for uncertainty, and what effect that would have upon the law itself must await such a proceeding.

! The existence of the jurisdictional facts which must underlie the order to give it vitality and validity, may be challenged in another forum.,

Sullivan and Dustin, JJ., concur.  