
    Sprague, Judge, v. The State, ex rel. Staples.
    (Decided January 3, 1930.)
    
      
      Messrs. Miller é 8earl, for plaintiff in error.
    
      Mr. Albion Z. Blair, for defendant in error.
   Middleton, P. J.

This ease originally was an action in mandamus filed in the court of common pleas to compel the municipal judge of the city of Portsmouth to finally hear and dispose of a criminal charge made by Arthur Staples against one Robert Risley. The affidavit charged a violation of Section 13049, General Code, which provides a penalty of fine and imprisonment. The record discloses that the defendant below, W. R. Sprague, the judge of the municipal court, who is plaintiff in error here, neglected and refused to place said Risley on trial under said charge, but, upon his plea of not guilty, required him to enter into a recognizance for his appearance in the court of common pleas of this county. The court of common pleas allowed the writ, and this proceeding is prosecuted to reverse the judgment of that court.

The contention of the relator, Arthur Staples, is that the judge of the municipal court was under the mandatory duty to make a final disposition of the case, and was without any discretion after said plea was made to do otherwise than to impanel a jury to try and determine the truth of the charge made against Risley.

The municipal court of the city of Portsmouth was created by a special act of the Legislature, 108 Ohio Laws, pt. 1, 462 (Section 1579-459 et seq., General Code).

By Section 3 of said act it was provided (Section 1579-461, General Code): “The municipal court herein established shall have the same jurisdiction in criminal matters and prosecutions for misdemeanors, or violation of ordinances, as heretofore had by the police court (mayor’s court) of Portsmouth, Ohio, and justices of the peace for Wayne township * *

By Section 5 of said act (Section 1579-463, General Code) it was further provided that said court “shall have jurisdiction of all misdemeanors, and all violations of city ordinances, of which police courts or the mayors in municipalities now have or may hereafter be given jurisdiction.”

At the time of the enactment of this law, the jurisdiction of mayors of cities in the class in which the city of Portsmouth then was appears in Section 4528, General Code, in which it was provided that the mayor ‘ ‘ shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury * *

It was further provided in Section 4532, General Code: “If the charge is the commission of a misdemeanor, prosecuted in the name of the state, and the accused, being entitled to a jury, does not waive the right, the mayor may, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as such cases are tried in the court of common pleas on the indictment. ’ ’

It will be seen from the foregoing provisions of the General Code that at that time the power of a mayor to finally hear and determine the guilt of a defendant charged with the commission of a misdemeanor was to some extent at least a discretionary power. If the defendant was not entitled to a trial by jury, it was mandatory upon the mayor to proceed with the final determination of the case. On the other hand, if the defendant had the right of a trial by jury, the mayor was authorized to proceed to impanel a jury as provided for in .the court of common pleas. The duty to impanel a jury, however, does not appear from the language of the statute to be mandatory. From which, as an alternative, it is clear that he had the right to bind the accused over to the grand jury.

The municipal court, however, was further given the jurisdiction then conferred by law upon police courts of this state. The jurisdiction of police courts in criminal cases as then defined by the General Code is found in Section 4577, which provides that such courts “shall have jurisdiction of, and to hear, finally determine, and to impose the prescribed penalty for, any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city, or within four miles thereof.”

The general jurisdiction of a justice of the peace has always been that he can hear complaints and bind over to the grand jury those charged with any offense, felony, or misdemeanor. A justice of the peace also has such special jurisdiction in particular cases as is set forth in Section 13423-1, General Code, as it read prior to July, 1929 (109 Ohio Laws, 62). The New Criminal Code (Sections 13422-1 to 13460-1, General Code [113 Ohio Laws, 123-215]) that became effective July 21, 1929, has perhaps somewhat affected the jurisdiction of mayors, but we know of nothing that indicates any change in the jurisdiction of the other courts mentioned. By Chapter 12 of the New Criminal Code (Sections 13433-1 to 13433-19, General Code), provision is made for the exercise of the general jurisdiction of justices of the peace in holding preliminary examinations. The special jurisdiction of such justices now set forth in Section 13422-3, General Code (113 Ohio Laws, 123), and the prosecution of all offenses before mayors and police judges, is governed by Chapter 3 of the New Criminal Code, Section 13424-1 et seq., General Code (113 Ohio Laws, 125). While Section 13422-3 confers special jurisdiction upon mayors and justices of the peace, who would not otherwise have anything but the power of preliminary examination, municipal courts, by virtue of Section 13422-6 (113 Ohio Laws,_124), have all the jurisdiction conferred upon them by the act creating such a court. The municipal court of Portsmouth consequently has the power of a justice of the peace to bind over in cases of felony, and in misdemeanors has all the jurisdiction heretofore conferred upon police judges, which is the power to finally hear and determine all cases in misdemeanors.

It may be said that, inasmuch as the municipal court has the jurisdiction of a justice, and as justices of the peace have the power to bind over to the grand jury all those charged with a misdemeanor, the municipal court has also that jurisdiction. The jurisdiction to bind over, however, is inconsistent^,with the larger jurisdiction to try and determine; any case of misdemeanor. That is the logic behind State, ex rel. Smith, v. Smith, 69 Ohio St., 196, 68 N. E., 1044. In that case a justice of the peace had general jurisdiction to bind over one charged with a misdemeanor. In the particular case then under consideration, the justice of the peace had special jurisdiction to try and determine the issues in that case. The Supreme Court, while it said nothing of his general jurisdiction, did in the face of the fact he possessed it, compel him to exercise his larger jurisdiction. The writ of mandamus compelled him to exercise the latter. We think the analogy a fair one and that in the instant case the respondent cannot avoid the performance of the larger duty incumbent upon him by his possession of the jurisdiction of a police judge by exercising the inferior jurisdiction of a justice of the peace. For this reason, therefore, the writ should have been allowed.

It is contended, however, that Sections 13433-10 and 13433-11 of the new Code are exclusive, and limit the jurisdiction of magistrates to the things therein specified, and by reason thereof repeal by implication Sections 4528, 4532 and 4577 aforesaid. If this interpretation of the sections named is correct, it would follow that the provisions of Chapter 3, and particularly Section 1 of that chapter (Section 13424-1, General Code), are without any court with jurisdiction to enforce them. In other words, if Sections 13433-10 and 13433-11 define in full the jurisdiction of magistrates in cases of misdemeanors, the magistrate must, when the defendant pleads not guilty, recognize him to appear before the proper court, unless he waives a jury and submits to be tried by the magistrate. It is apparent that the Legislature did not intend Sections 13433-10 and 13433-11 as limitations on the general jurisdiction of magistrates as provided in other existing statutes. If the legislature had so intended, it would have disposed of such statutes by direct repeal. It is apparent, we think, that Sections 13433-10 and 13433-11 were intended to apply only to preliminary examinations of persons charged with the commission of both felonies and misdemeanors.

It is further contended and set forth in the fifth defense of respondent’s answer that he “will and does require the complainant in said affidavit, whom he considers irresponsible, to procure a person to be liable for the costs if said complaint is dismissed. ’ ’

It is apparent from this answer and the other facts pleaded that the time for requiring security for costs by the respondent has passed, and that he is now without any legal authority to make such a demand.

The order and judgment of the common pleas court is therefore affirmed.

Judgment affirmed.

Mattck and Blosser, JJ., concur.  