
    In re Diehl, Judge.
    
      (Decided June 29, 1933.)
    
      Mr. L. B. McMillen, for complainants.
    
      Messrs. Hart, Druchenbrod $ McHenry, Messrs. Fisher, Leahy & Weintrcmb and Mr. Oscar M. Abt, for Judge Diehl.
   Montgomery, J.

This proceeding differs from the ordinary litigation in which the decision of a court is invoked, in that its primary purpose is not the establishment or protection of the rights of an individual, nor the vindication or punishment of an individual, but is the protection of the public service, the guaranty of the inherent right of the public to have its courts presided over by men morally qualified to render efficient service. The question is not whether the individual does in fact have the confidence of his constituents, but whether or not his conduct has been such as to entitle him to claim or retain that confidence.

This proceeding does have this rule in common with all other litigation: That it must be decided, not according to the beliefs or desires of any portion of the people, minority or majority, but according to the evidence produced in open court and the law applicable thereto.

Complaint has been filed in this court, as authorized by the laws of Ohio, against. Edwin W. Diehl, judge of the court of common pleas of Stark county, Ohio, asking that he be removed as such judge, and that he be deprived of his office and of all the emoluments thereof. There are eight specifications in this complaint, which may be summarized in this way:

(1) That he has used his office as a means of borrowing money from lawyers and litigants appearing before him, thus placing himself under obligation to such creditors, with consequent favoritism extended to them and discrimination against others to whom he had not become obligated.

(2) That he has sought to evade his obligations by having taken recently what is commonly known as the Bankrupt Act.

(3) That these acts denote a lack-of moral integrity, honesty and fairness, essential to a judge of our courts.

An answer was filed by Judge Diehl in which he admits the borrowings charged against him, and admits the taking of the Bankrupt Act; but he denies that the borrowings have in any way influenced or affected his conduct as a judge and denies that by taking the Bankrupt Act he seeks to avoid his obligations.

The answer contains two affirmative defenses:

(1) That this court has no jurisdiction to hear this complaint and pass upon the same.

(2) That the things complained of took place during a former term of office, and not during the term of office in which he is now serving.

Section 38, Article II, of the Constitution of the state, of Ohio, directs that laws shall be enacted providing-for the prompt removal of public officers. Section 10-2, ; General Code, specifically provides that the Court of Appeals shall have power to remove judges of the. Court of' Common Pleas. In our judgment, there can-be no question of the jurisdiction of this court to hearj and determine this proceeding. ~~

So far as taking the Bankrupt Act is concerned, it is sufficient to observe that the Congress of the United States has provided such a course for insolvent debtors, within which class Judge Diehl clearly comes. There is no exception applicable to Judge Diehl from the right of an insolvent debtor to avail himself of this Bankrupt Act. When the chief lawmaking body of the United States has authorized such a proceeding, neither this court, nor any other court, can punish a man for availing himself of it. It is admitted that the bankrupt made an honest return of his assets, and there is no proof that, by availing himself of this act,, he is seeking to avoid paying his just obligations.

The record shows that Edwin W. Diehl was appointed in the year 1923 to fill an unexpired term as judge of the Court of Common Pleas of Stark county; that in 1924 he was elected to a full term of six years; that in 1930 he was re-elected to a second full term; and that he entered upon his present term February 9,1931. At the time he first took office, he was indebted to banks and to individuals, including some practicing lawyers, in an amount aggregating $24,000. Of this original indebtedness approximately $14,000 is. still outstanding, and there have been additional borrowings from banks and individuals, including practicing lawyers, of approximately $6,000, so that his present indebtedness is a little in excess of $20,000, and additional obligations as surety make for him a total indebtedness of approximately $22,000.

The record shows that Judge Diehl has borrowed money from twelve practicing lawyers, and that three others have signed notes for him as surety. Some of these obligations were in force when he went upon the bench; others have been incurred since that time. Seven of these lawyers have been paid in full. To five of them he is still indebted, and the obligations to which the three bound themselves as surety are still unpaid. None of these obligations have been incurred since February 9, 1931, the date of his beginning his present term of office.

Counsel for the judge contend that, under the holding of the Supreme Court of Ohio, in the case of State, ex rel. Vogt, v. Donahey, Gov., 108 Ohio St., 440, 140 N. E., 609, the fact that none of the things complained of herein occurred during the present term of office constitutes a bar to the prosecution of this proceeding. With that contention we do nót agree;

The facts in this proceeding easily distinguish it from the Vogt case. In that case, the complaint alleged that Vogt, as mayor of Massillon, had permitted the open and notorious operation of places for the illegal sale of liquor, of gambling houses, and of houses of prostitution; that he had retained and reinstated in office policemen who were known protectors of vice. The Supreme Court held incompetent evidence of such alleged misconduct during a term of office which had expired. There was a course of conduct, open and notorious, and the electors of the city of Massillon had reelected this mayor. Under our system of government, the decision of the electors in such a case is final.

In the instant proceeding the conduct of Judge Diehl complained of was not open and notorious. From its very nature it was not known, and could not be known, by the electorate. Whatever vice, if any, inhered to it, was continuing, and was just as potent in his present term of office as in the terms during which the borrowings occurred. The gravity of the charge lies not so much in the borrowing, as in his continued owing of the sums borrowed.

Let it be understood that this court disapproves and condemns the practice on the part of any judge of borrowing money from lawyers practicing before him, or of obligating himself in any way to them. The question for us to determine is whether the evidence introduced before us shows that such borrowing, and such obligating himself, affected the official conduct of Judge Diehl and resulted in favoritism or discrimination or in any perversion of proper administration of justice.

As stated by the Supreme Court of Iowa in the case of State, ex rel. Fletcher, Atty. Genl., v. Naumann, 213 Iowa, 418, 239 N. W., 93, 81 A. L. R., 483, a statute authorizing the removal of a public officer for neglect of duty, maladministration or corruption must be given a strict construction, and the evidence in support of the complaint must be clear and convincing. With that pronouncement we are in complete accord.

Measured by that standard, what do we find in the instant proceeding? We cannot determine it'upon inference or suspicion. We must determine it upon the evidence. There is an absolute and complete failure of proof that the things complained of affected in any way the attitude or the judicial conduct of Judge Diehl. There is no proof of any kind of favoritism or discrimination shown by him as a result of these transactions. The evidence produced all tends to show the contrary.

It is therefore the judgment and order of this court that the complaint filed herein be, and it hereby is, dismissed.

Complaint dismissed.

Sherick, P. J., and Lemert, J., concur.  