I am opposed to a rehearing in this case. The opinion should be modified by merely holding section 2270 invalid only so far *Page 394 as it provides for appeal from a decision of the State Board, after hearing, to the district court for a trial by that court sitting with a jury. To authorize such a trial would be to review an act done by the State Board in the exercise of its discretionary power, and that has never been done by this court in its history. I wrote the original opinion holding section 2270 invalid to the extent here mentioned, and only consented to hold the section invalid in its entirety out of deference to the opinion of my associates to the contrary who opposed limiting the holding on validity. A rehearing to correct that error is not necessary.
To remand an action to the district court to permit a plaintiff to amend his pleadings to state a cause of action is an innovation in this court's powers of review. It has always been my belief that we could review only such questions brought in issue in the trial court, and further that the right to permit amendments after one amendment is made as provided by section 9186, Revised Codes, is a matter that rests entirely within the discretion of the trial court. If this court is ever authorized to permit amendments, or remand a case to permit an amendment to pleadings, where the plaintiff, as here, when the court refused to hear any evidence on the ground that the complaint did not state a cause of action, refused to plead further and appealed, I have never heard of it and have been unable to find any authority in the statutes or rules of court or judicial decisions. This is a court empowered to review judgments of lower courts on the issues made and determined by such courts. It is not our function to remand actions to trial courts and point out what a litigant shall plead when the litigant has not asked for and been denied by the trial court the privilege plaintiff now seeks. *Page 395