State v. Bloz , 23 Ohio App. 307 ( 1927 )

In the mayor's court of A.J. Fultz, of the village of Lakemore, in Summit county, the defendant in error, Mike Bloz, a resident of Akron, was charged with unlawful possession of intoxicating liquor in the city of Akron in violation of a state statute (Section 6212-15, General Code).

He was tried and convicted, and later prosecuted error to the court of common pleas, where his conviction was reversed, and he was discharged.

The case was prosecuted in the mayor's court, and defended in the court of common pleas on error by attorney Edward N. Heiser, who was in the employ of said village under and by virtue of the provisions of Section 6212-37, General Code. Said attorney filed a petition in error in this court on behalf of the state of Ohio to obtain a review of the judgment of the common pleas court.

Counsel for Mike Bloz has filed a motion in this court to dismiss this proceeding in error for want of jurisdiction; the claim being that attorney Heiser is without authority to bring and prosecute such proceeding on behalf of the state of Ohio.

Section 13764, General Code, provides: "Whenever a court, superior to the trial court, renders judgment adverse to the state in a criminal case or proceeding, error may be prosecuted to reverse such judgment in the next higher court by either the prosecuting attorney or attorney-general. If such conviction has been for a violation of a municipal ordinance, such proceedings in error may be brought by the solicitor of the municipality."

The defendant was not found guilty of the violation of a municipal ordinance, and it is conceded that the latter part of the above-quoted section has no application.

The remainder of the section authorizes only the prosecuting attorney or Attorney General to prosecute such error proceedings, and Section 2916, General Code, makes it the duty of the prosecuting attorney, except when otherwise provided by law, to "prosecute on behalf of the state all complaints, suits, and controversies in which the state is a party."

It is claimed, however, that it is "otherwise provided by law," and that the attorney who brought this suit on behalf of the state of Ohio was authorized to do so because of the provisions of Section 6212-37, General Code, which reads as follows:

"The council of any city or village may appropriate the necessary funds, for the purpose of hiring attorneys, detectives, or secret service officers to secure the enforcement of the prohibition laws. The appointment of attorneys, detectives or secret service officers shall be for a definite term at a definite salary and not on a percentage basis."

This section was originally passed as a part of an act to provide for the appointment of a commissioner of prohibition (109 Ohio Laws, 4), being Section 17 thereof.

The first sixteen sections of that act relate to the creation, duties, and powers of a commissioner of prohibition and his assistants, and the remainder of the act has no connection therewith. Although both parts relate to the same subject, the enforcement of prohibition, they are in no other manner related.

The commissioner and his assistants are state employes or officers, and the attorneys and detectives provided for in Section 17 (Section 6212-37, General Code) are employes of municipalities, and are in no wise assistants of or under the orders of the prohibition commissioner.

Section 17 (6212-37), as originally passed (109 Ohio Laws, 9), provided for the pay of such attorneys and detectives on a percentage basis, but in 1925 it was amended so as to require their employment for a definite term at a definite salary (111 Ohio Laws, 83), but an attorney so employed is not a public officer of any kind, either of the state or the municipality. He is simply an employe; "hired," not by the state of Ohio, but by a village, for a fixed time at a fixed salary. He is hired "to secure the enforcement of the prohibition laws." What prohibition laws, and where they are to be enforced, is not stated.

We are of the opinion that a lawyer hired under this section has authority to represent the municipality in prosecutions for the violation of liquor ordinances passed by the municipality where he is employed, and to represent the state in prosecutions for the violation of state laws which are triable in such municipality, but not otherwise.

He is not "the solicitor of the municipality," nor a "prosecuting attorney," within the meaning of Section 13764, and is not empowered to bring and prosecute an error proceeding on behalf of the state of Ohio.

An error proceeding is a new and independent action, and the duly constituted officers of the state and county are invested with authority to determine when such an action should be brought on behalf of the state, and, as we construe the law, such authority has not been conferred upon an attorney hired under and by virtue of Section 6212-37, General Code.

By virtue of the Constitution, this court has jurisdiction of the subject-matter of this proceeding, but we are unable to exercise that jurisdiction until we obtain jurisdiction of the parties; the filing of a petition in error on behalf of the state of Ohio by one not authorized to do so does not invest this court with jurisdiction of the plaintiff in error, and not having jurisdiction of the parties we can enter no judgment, not even as to costs; all that we can do is to dismiss the proceeding for want of jurisdiction, which we do.

Motion allowed; petition in error dismissed.

PARDEE, P.J., and FUNK, J., concur.