Weiss v. Kearns

This is a pending case on the docket of this court, which was appealed on questions of law and fact from a judgment entered in the Court of Common Pleas of Cuyahoga County. Defendant-appellee A. L. Kearns, hereinafter designated appellee, has filed a motion to dismiss the appeal on questions of law and fact "for the reason that the court has no jurisdiction to entertain such an appeal." He cites as authority the recent decision of the Court of Appeals of the Fourth Appellate District in BuckeyeUnion Casualty Co. v. Braden, 116 Ohio App. 348, and an article which appeared in the Ohio BAR, Vol. XXXV, No. 39, at page 1150 (October 8, 1962), written by our esteemed colleague Judge Lee E. Skeel.

The burden of Judge Skeel's article is that the language incorporated in the 1944 Amendment of Section 6, Article IV of the Ohio Constitution, wherein it is stated that "the Courts of Appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse *Page 394 judgments or final orders * * *," empowers the General Assembly to enact laws to provide the method and procedure to appeal cases to the Courts of Appeals on questions of law only since the use of the words, "review, affirm, modify, set aside or reverse," historically, in the court system of Ohio, mean "error proceedings" (now known as appeals on questions of law), and the Supreme Court, following the 1912 Amendment to the same Section and Article, has declared that the expression, "as may be provided by law," gives the General Assembly no power to enlarge the jurisdiction so indicated but merely to provide by law the method of exercising that jurisdiction, and since the 1944 Amendment leaves out the expression, "appellate jurisdiction in the trial of chancery cases," which was part of the 1912 Amendment, appeals de novo on questions of law and fact are eliminated.

Paragraph one of the syllabus of the Buckeye Union CasualtyCo. case, supra, reads as follows:

"Courts of Appeals do not have jurisdiction in appeals on questions of law and fact."

Judge Radcliff, the writer of the opinion in that case, also relies heavily upon articles written by Judge Skeel appearing in Skeel's Ohio Appellate Law, 1961 Cumulative Service, 88 et seq., Section 200-1, and 12 Western Reserve Law Review, 645. Judge Radcliff, moreover, believes that the original reason and need for an appeal on questions of law and fact no longer exists for the reason that when Section 6, Article IV of the Ohio Constitution was amended in 1883, creating the Circuit Courts to replace the District Courts, all possibility of an appealcoram nobis (appeal to oneself) was abolished, and it became impossible for a judge to preside in an equity case "on the trial level and then sit as one of three judges reviewing the same case on appeal."

Plaintiffs-appellants, hereinafter designated appellants, argue that the 1944 Amendment of Section 6, Article IV of the Ohio Constitution, by providing that "The Courts of Appeals shall have * * * such jurisdiction as may be provided by law toreview, affirm, modify, set aside, or reverse judgments or finalorders * * *" (Emphasis added.), confers plenary power upon the General Assembly to change the appellate jurisdiction of theCourts of Appeals within the ambit "to review, affirm, modify, *Page 395 set aside, or reverse," that the language encompasses a "review" on questions of law and fact as well as on questions of law and, in accordance therewith, empowers the General Assembly to enact Sections 2501.02 and 2505.21, Revised Code, effective October 4, 1955, conferring jurisdiction upon the Courts of Appeals to "review" certain designated classes of cases on questions of law and fact.

Parts of Section 2501.02, Revised Code, pertinent to our discussion here, read as follows:

"* * * In addition to the original jurisdiction conferred by Section 6 of Article IV, Ohio Constitution, the court shall have jurisdiction:

"(A) Upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the Court of Appeals within the district, including the finding, order, or judgment of a Juvenile Court that a child is delinquent, neglected, or dependent, for prejudicial error committed by such lower court;

"(B) Upon an appeal on questions of law and fact the Court of Appeals, in cases arising in courts of record inferior to the Court of Appeals within the district, shall weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case, in the following classes of actions, seeking as a primary and paramount relief:

"1. The construction or enforcement of a trust, including the enforcement or establishment of constructive or resulting trusts;

"2. The establishment or enforcement of equitable estates arising from the conversion of property;

"3. The foreclosure of mortgages and marshalling of liens, including statutory liens;

"4. The appointment, removal, and control of trustees and receivers;

"5. The restraint of commission of torts;

"6. The reformation and cancellation of instruments in writing;

"7. The restraint of actions or judgments at law.

"8. The quieting of title to property, the partition of property, and the registration of land titles; *Page 396

"9. The specific performance of contracts, or the restraint of the breach thereof;

"10. Injunction, accounting, subrogation or interpleader.

"In all cases not falling within the classes designated above, the Court of Appeals shall have jurisdiction to proceed as in an appeal on questions of law only.

"* * *."

Parts of Section 2505.21, Revised Code, captioned, "Hearing on appeal," read as follows:

"* * *.

"An appeal taken on questions of law and fact entitles the party to a hearing and determination of the facts de novo which shall be upon the same or amended pleadings. The court shallreview the final order, judgment or decree upon such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justice the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court." (Emphasis added.)

It is conceded by appellee that the case here appealed comes within the purview of Section 2501.02, Revised Code, as a "law and fact" appeal for the reason that the ultimate relief sought by appellants was the granting of an injunction permanently restraining appellee from attempting to satisfy a default judgment obtained by him against appellants in the Court of Common Pleas.

The sole question before us is whether these laws, vesting the Courts of Appeals with jurisdiction to "review" the classes of cases set forth in Section 2501.02, Revised Code, on questions of law and fact in accordance with the method and procedure outlined in Section 2505.21, Revised Code, are repugnant to the provisions of Section 6, Article IV of the Ohio Constitution, as amended in 1944, and, therefore, unconstitutional enactments of the General Assembly.

In considering the question whether these enactments of the General Assembly are constitutional, we must keep in mind that the Constitution under which Ohio operates was adopted in 1851 and that Section 6, Article IV, an integral part of such organic law, has undergone four amendments, each aimed at improving the administration of justice in intermediary reviewing *Page 397 courts — in 1883, 1912, 1944 and 1959. (The 1959 Amendment merely authorizes the General Assembly to add additional judges.)

Much of the significant language used in the 1944 Amendment had been used before in the ninety-three year old Constitution and in statutes enacted pursuant to its authority, and resort must be had to the history of the times when these words, phrases and expressions were first employed to understand the meaning and sense to be accorded them.

The following is stated in 11 American Jurisprudence, 676, Section 63:

"It is settled by very high authority, that in placing a construction on a Constitution or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the Constitution was framed and adopted, in order to ascertain the prior law, the mischief, and the remedy. A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them."

Judge Stephenson of the Supreme Court of Ohio sets forth the established rules of construction in determining the constitutionality of an act of the Legislature at page 282 in the case of Board of Elections for Franklin County v. State, exrel. Schneider, 128 Ohio St. 273, as follows:

"1. It must be accorded the presumption of constitutionality.

"2. The question of constitutionality must be determined in the light of the Constitution in its entirety.

"3. If the Act can be fairly reconciled with the Constitution, we must so reconcile it.

"4. In considering the scope of the Act we must not only consider past and present evils, if any, but we must determine whether its existence would naturally tend to lead us into future evils. Village of Euclid v. Camp Wise Assn., 102 Ohio St. 207, at page 215, 131 N.E. 349.

"5. If the maxim `Expressio unius est exclusio alterius' is involved, we must consider it. State, ex rel. Robertson RealtyCo., v. Guilbert, Aud. of State, 75 Ohio St. 1, 78 N.E. 931.

"6. Courts have nothing to do with the policy, justice or wisdom of a statute, so long as it can be said that it does not *Page 398 contravene the Constitution. Cincinnati Street Ry. Co. v.Horstman, 72 Ohio St. 93, 73 N.E. 1075; B. O. Rd. Co. v.Chambers, 73 Ohio St. 16, 76 N.E. 91, 11 L.R.A. (N.S.), 1012; Nicholson v. Franklin Brewing Co., 82 Ohio St. 94,91 N.E. 991, 137 Am. St. Rep., 764.

"7. It is dangerous for any court to hold that an act of the General Assembly contravenes the spirit, but not the letter, of the Constitution. The spirit of the Constitution is like any other spirit. We cannot see it, nor handle it, consequently we do not know much about it. We are too prone to insist that the spirit of the Constitution is what we think it ought to be. Unless such spirit is clearly manifest, it had best be left in the spiritual world. Cass v. Dillon, 2 Ohio St. 607; State, exrel. Evans, v. Dudley, 1 Ohio St. 437; Lehman v. McBride,15 Ohio St. 573; State, ex rel. Garnes, v. McCann, 21 Ohio St. 198.

"8. However, the General Assembly exercises delegated authority only, and any act passed by it not fairly falling within the scope of legislative authority is as clearly void as though expressly prohibited. Cincinnati, Wilmington ZanesvilleRd. Co. v. Commissioners of Clinton County, 1 Ohio St. 77;Baker v. City of Cincinnati, 11 Ohio St. 534; Lehman v.McBride, supra; State, ex rel. Garnes, v. McCann, supra; Bloom v. City of Xenia, 32 Ohio St. 461.

"9. A constitution is to be construed by the same rules as those employed in the construction of statutes, except that since the terms of the constitution are more general the grants of power should be construed more liberally. County of Miami v. Cityof Dayton, 92 Ohio St. 215, 110 N.E. 726.

"10. History of the law may lend light to construction. Cooley's Constitutional Limitation (8 Ed.), Vol. 1, pages 132 and 133."

(All subsequent emphases in this opinion are supplied unless otherwise indicated.)

Before the Ohio Constitution of 1851, Ohio operated under a Constitution adopted in 1802, wherein provision was made for three constitutional courts: justices of the peace, common pleas, supreme, and such other courts as the Legislature might from time to time establish (Section 1, Article III). The Supreme Court was the only court which entertained appeals from the Court of Common Pleas and had original and appellate *Page 399 jurisdiction, both in common law and in chancery, "in such casesas shall be directed by law." (Section 2, Article III.) All cases appealed to it were retried de novo.

An intermediary court of review between the Supreme Court and the Court of Common Pleas was first established in the Ohio Constitution of 1851, Section 5, Article IV, which provided for District Courts composed of the judges of the Court of Common Pleas of the respective district and one of the judges of the Supreme Court. Its jurisdiction was prescribed in Section 6 and it had "like original jurisdiction with the Supreme Court, andsuch appellate jurisdiction as may be provided by law." The Legislature, on March 23, 1852, passed "An act regulating appeals to the District Court." 3 Curwen's, Statutes of Ohio, Chapter 1124 (page 1725), 50 Ohio Laws, 93, Section 1, March 23, 1852. Parts of Section 1 of such Act read:

"* * * appeals may be taken from all final judgments in civil cases at law, decrees in chancery, and interlocutory decrees dissolving injunctions rendered by the Court of Common Pleas, the Superior and Commercial Courts of Cincinnati, and the Superior Court of Cleveland, in which said courts have original jurisdiction, * * *; and the cause so appealed shall be againtried, heard and decided, in the District Court, in the samemanner as though the said District Court had originaljurisdiction of the cause."

In 1880 provision was made for appeals on questions of law as we know them in present day practice. Under Ohio Revised Statutes in force January 1, 1880, Title IV, "Error, Mandamus and Quo Warranto," in Chapter 1, "Jurisdiction and Procedure in Error," Section 6707 read:

"An order affecting a substantial right in an action, * * * is a final order which may be vacated, modified, or reversed, as provided in this title."

Section 6708 read:

"A judgment rendered * * * by * * * or any other tribunal * * * inferior in jurisdiction to the Court of Common Pleas may bereversed, vacated, or modified by the Court of Common Pleas."

Section 6709 read:

"A judgment rendered or final order made by the Court of Common Pleas, or any Superior Court, may be reversed, vacated, *Page 400 or modified by the District Court, for errors appearing on the record."

Trials de novo to the District Court were provided for in Section 5 as appears in 55 Ohio Laws, 82, as follows:

"* * * That appeals may be taken from all final judgments, orders or decrees in civil actions, in which the parties have not the right * * * to demand a trial by jury * * * and the action so appealed shall be again tried, heard and decided in the District Court in the same manner as though the said District Court had original jurisdiction of the action."

A court similar to our present Court of Appeals was created by an amendment to Section 6, Article IV of the Ohio Constitution on October 9, 1883. It was known as the Circuit Court and was established as the successor to the District Court and given like original jurisdiction with the Supreme Court and "suchappellate jurisdiction as may be provided by law."

On February 7, 1885 (82 Ohio Laws, 36), the Legislature passed Section 6709 which provided that:

"A judgment rendered, or final order made, by the Common Pleas Court, may be reversed, vacated, or modified by the Circuit Court, for errors appearing on the record * * *."

Section 6710 passed at the same time read as follows:

"A judgment rendered, or final order made, by the Circuit Court, may be reversed, vacated, or modified by the Supreme Court, on petition in error, for errors appearing on the record * * *."

It will be observed that in each instance where the General Assembly invested reviewing courts with jurisdiction to hear cases "in error proceedings," now known as appeals on questions of law, it spoke of judgments or final orders being reversed,vacated, or modified, and wherever these words are used, they refer to an appeal on questions of law.

Section 6, Article IV of the Ohio Constitution, as amended in 1912, read, in part, as follows:

"The Courts of Appeals shall have * * * appellate jurisdiction in the trial of chancery cases, and, to review,affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law * * *."

This was the first instance in the juridical course of the *Page 401 Constitution wherein the General Assembly was not authorized to determine the appellate jurisdiction of the intermediate reviewing courts.

The amendment was proposed by a Constitutional Convention which sat from January 9 through June 7 of the year 1912. Two volumes, designated "Proceedings and Debates Ohio Constitutional Convention 1912" contain a verbatim record of the convention. It is interesting reading and sheds much light on the language used in Section 6, Article IV, as amended in 1912.

It appears that the reviewing courts of the state in those days were congested and years behind in their dockets. This condition existed in the Circuit Courts because of the many cases which had to be retried, making litigation drawn out and cumbersome. (All cases in which a party did not have a right to a jury trial were again tried in the Circuit Court as though it had original jurisdiction.) The slogan of the Convention was "One Trial and One Review," and reforms in the judicial system centered around that concept. The great debates dealt with the elimination of a second trial in the Circuit Courts which again required the appearance of witnesses at a full hearing. It was argued by many of the delegates that the trial in the Common Pleas Court in the class of cases permitting retrials was a sham, because lawyers would not put on their full case, realizing that a retrial of the cause could be had in the Circuit Court. This, they argued, made the trial of causes a fencing contest — the first trial merely serving the purpose of disclosing what evidence an adversary had. It was pointed out that Ohio was almost alone in providing for a complete retrial in a reviewing court of chancery cases and that most other states and the federal procedure provided for the reviewing court to determine the matter anew on a transcript of the evidence presented in the trial court.

The Committee on Judiciary and Bill of Rights presented a unanimous report proposing the following amendment to Section 6, Article IV of the Constitution:

"The Courts of Appeals shall have * * * original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo and appellate jurisdiction to review, and affirm, modify, or reverse the judgments of the Courts of Common Pleas and Superior Courts of the district, in all cases, and judgments of said Courts *Page 402 of Appeals shall be final in all * * * cases, except such as involve questions arising under the Constitution of this state, or the United States, or cases of the infliction of the penalty of death, or of imprisonment for life, or cases of which it has original jurisdiction."

The chairman of this committee made it clear to the delegates that the committee intended that the word, "review," have a broad meaning and include the concept of the Court of Appeals reviewing a chancery case tried before a judge in the Common Pleas Court on the transcript of the evidence on law as well ason fact, and stated that "It was intended that the word `review' should be broad enough to include trial on facts on merely a review of the record." The debates which followed for days make it manifest that every delegate to the convention understood that such was the meaning intended by the use of the word, "review." After debate, the proposal was adopted and the convention at the time was convinced that such amendment would achieve the judicial reform most wanted. The convention thereafter was recessed for several days which gave the delegates an opportunity to discuss this proposed amendment with the people of their various districts. Upon reconvening, the delegates who returned from the rural parts of the state reported that the folks back home were dissatisfied.

A motion was made to amend by adding to the sentence, "and for the retrial of equity cases appealed in any of said courts." The argument was that Circuit Courts offered such retrials and that the people wanted such procedure to continue in the new Court of Appeals; that the one judge who tried and decided equity cases without a jury usually knew the parties involved and was so close to the controversy that he was bound to have some bias in the matter; that the people wanted those cases retried before three judges of the Court of Appeals who would be removed from such influences; that the transcript of the evidence was too costly for poor litigants and that the summoning of witnesses for retrial was much cheaper; and that they had more confidence in a trial in which the judges could see the witnesses face to face to determine their credibility rather than to have to make such determination from a cold transcript. The delegates from the urban areas argued, however, *Page 403 that the Circuit Courts in their districts, by rule of court, required that the trial of "cases appealed" be heard on the transcript of the testimony rather than on the basis of a rehearing of the witnesses; that the results were just as satisfactory as a retrial; and that a retrial of the case made for two trials and no review, which was exactly what the convention was trying to prevent. The proponents of the motion then argued that a retrial in the reviewing court was nothing more than a form of a "review" of the trial had in the Court of Common Pleas, that, in reality, the litigant was given a "review" by way of an actual trial instead of a "review" by way of a printed record, and that such proceeding might be called a trial rather than a retrial. This argument carried the day and the amendment, previously adopted, was amended to incorporate the following wording: "in the trial of chancery cases and" after the word, "jurisdiction." The proposed amendment now read:

"The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law * * *."

The amendment, as finally drafted, retained the trial de novo in chancery cases and, under the well known maxim, "expressiounius est exclusio alterius," pre-empted such retrial for other cases. The word, "review," thus became of little significance because the use of the words, "affirm, modify or reverse," plainly gave the Court of Appeals jurisdiction to hear cases other than chancery cases "in error proceedings."

The Supreme Court, in the case of Cincinnati Polyclinic v.Balch, 92 Ohio St. 415, in interpreting the language, "review, affirm, modify or reverse," gave no special consideration to the word "review." And the Supreme Court in interpreting the expression "in the trial of chancery cases" in the case ofWagner v. Armstrong, 93 Ohio St. 443, stated the following in paragraph one of the syllabus:

"1. Section 12224, General Code, purporting to vest the Courts of Appeals with jurisdiction in the trial of cases on appeal, is unconstitutional and void. The jurisdiction of the Courts *Page 404 of Appeals in the trial of cases on appeal is expressly limited by the Constitution to chancery cases, and this jurisdiction cannot be enlarged by the General Assembly."

Also see memoranda case of Snyder v. Deeds, found at 91 Ohio St. 407.

We come now to the consideration of Section 6, Article IV of the Ohio Constitution as amended in 1944. It reads in part as follows:

"The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district * * *. All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed * * *."

In 10 Ohio Jurisprudence (2d), 134, Constitutional Law, Section 33, under the heading, "Intent of Framers and Adopters as Controlling," states the following:

"The polestar in the construction of constitutions, as well as other written instruments, is the intention of the makers and adopters. The very object of construction, and its only proper purpose, is the determination and effectuation of such intent. The real intention of the body forming the law and the people adopting it must be ascertained and given effect unless this is impossible."

See Cass v. Dillon, 2 Ohio St. 607; State, ex rel. Evans, v.Dudley, 1 Ohio St. 437.

In Section 37 of the same volume (page 137) we find this statement:

"* * * The fundamental law of the state is to be construed in no narrow and illiberal spirit. * * * Since a constitution deals in general terms, it should receive a broader and more liberal construction than statutes in order that its purposes may be achieved. * * *"

In Section 43 (page 142) it is stated:

"The history of a constitutional provision, including the history of its subject matter, may lend light to construction. Particularly in regard to amendments to a constitution, the *Page 405 courts are under a duty to consider the old law, the mischief, and the remedy."

And in Section 44 (page 142): "Debates and Proceedings of Convention," parts relevant here read:

"It is a well-established rule that in construing the Constitution recourse may at times be had to proceedings in the convention which drafted that instrument.

"* * * Their consideration is proper in determining the purpose, intent, and consequent meaning of doubtful provisions, in which case they may be given great weight. Debates of the convention certainly may legitimately aid in removing doubts and fortify the court in following the natural import of the language of the Constitution. They may show the mischief intended to be prevented under the new order of things by the adoption of an amendment to the fundamental law."

See State, ex rel. Harbage, v. Ferguson, Aud., 68 Ohio App. 189, dismissed by Supreme Court, 138 Ohio St. 617; State, exrel. Arey, v. Sherrill, City Manager, 142 Ohio St. 574.

The 1944 Amendment to the Ohio Constitution was sponsored by the Judicial Council of Ohio, which is a body created by statute and organized for the "continuous study of the organization, rules, and method of procedure and practice * * * of the judicial system of the state, the work accomplished, and the results produced by those agencies, and by the judicial system and its various parts." (Section 105.51, Revised Code.) In its report to the General Assembly, as required by law, it recommended, among other things, the following:

"1. The council recommends the amendment of Section 6, Article IV of the Constitution to return to the General Assembly the power it originally had to provide by law for the appellate jurisdiction of the Courts of Appeals throughout the state."

One of the conditions complained of at the time the 1944 Amendment was placed before the people for a vote was the lack of uniformity in proceedings with respect to law and fact appeals. In most of the appellate districts appeals on law and fact were heard and decided on a transcript of the testimony presented in the court below with such additional testimony as was desired by either party, which by order of the court was obtained through a master commissioner and transcribed for the *Page 406 use of the court in establishing the facts anew. In other appellate districts, usually in rural areas, a trial was had with witnesses appearing in court. Under both systems the conditions complained of during the debates of the Constitutional Convention of 1912 again obtained. Lawyers merely participated in a sham trial, knowing full well that the real trial of the cause would take place in the Court of Appeals. Moreover, it was believed that the General Assembly was in a better position to correct abuses of the judicial system than having to resort to a constitutional amendment to bring about desired changes.

The people of Ohio were fully informed before voting on this amendment. The sponsors, the Judicial Council, with the aid of the Ohio State Bar Association, judges, lawyers and laymen, gave speeches and issued statements, and a pamphlet prepared by the Judicial Council was widely distributed throughout the state.

The reasons for the amendment were many: the elimination of the compulsory review of chancery cases by a retrial in the Court of Appeals; the return of power to the General Assembly to establish all appellate jurisdiction so that changes that the people desired could be made more readily; the establishment of a uniform procedure throughout the state in cases appealed on law and fact; the insuring of full and complete trials of chancery cases in the trial court; the simplification of litigation by providing for one trial and one review; and the reduction of disputes over the question of what is a chancery case.

See, 17 Ohio State Bar Association Report, 169; 16 Ohio State Bar Association Report, 32; 16 Cleveland Bar Association Journal, 219; Pamphlet of Judicial Council (as quoted on page 7 of appellee's brief, filed in Supreme Court, Case No. 30706,Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221) ; 31 Ohio Opinions, 358; 31 Ohio Opinions, 561; 14 Ohio Opinions (2d), 352.

The amendment states that the Courts of Appeals shall have "* * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * *." Appellee contends that this language merely empowers the General Assembly to provide for the method and procedure for appealing cases on questions of law alone because the words, "review, affirm, modify," and "reverse," were used *Page 407 in the 1912 Amendment and interpreted to mean appeals on questions of law.

It is our view that the 1912 Amendment bears no analogy to the 1944 Amendment. The 1912 Amendment conferred the appellate jurisdiction on the Courts of Appeals and the General Assembly had no power to enlarge on it and was relegated to the role of merely providing the method and procedure, and law and fact appeals were confined to "trials in chancery cases," constraining the conclusion that the words "review, affirm, modify" and "reverse," meant appeals on questions of law and nothing else. The 1944 Amendment empowers the General Assembly to establish "such jurisdiction as may be provided by law" within the ambit "to review, affirm, modify, set aside, or reverse" and thus returns the authority to determine the appellate jurisdiction of the intermediate reviewing courts to the General Assembly where it was for sixty-one years prior to 1912.

The words review, affirm, modify, and reverse are here not only brought under different auspices but assume a meaning attached to them prior to the 1912 Amendment when they were inaugurated in Ohio constitutional history during the Constitutional Convention of 1912.

The convention first adopted an amendment to Section 6, Article IV of the Ohio Constitution which read: "The Courts of Appeals shall have * * * appellate jurisdiction to review, and affirm, modify, or reverse judgments * * *." The purpose was to carry out a basic purpose of the convention: Creation of a judicial system providing for one trial and one review. The word, "review," in this amendment took on a broad and generic meaning and the amendment embraced the concept of reviewing chancery cases on questions of fact as well as law on a transcript of the evidence presented to the lower court.

It is reasonable to believe from all the circumstances bringing about the 1944 Amendment that such interpretation of the word, "review," was contemplated by the sponsors and fully understood by the General Assembly which passed the resolution placing the amendment upon the ballot and by the people of Ohio who voted on it.

If appellee's contention that this language grants the Legislature the authority to provide the method and procedure for *Page 408 appeals on questions of law and no more is correct, the framers were awkward indeed. All that needed to be stated with such purpose in mind would have been: "Jurisdiction to reverse, modify or set aside judgments or final orders as may be provided by law."

Surely appellee gives no meaning to the language "such jurisdiction as may be provided by law" and the word, "review." The expression, "as may be provided by law," before 1912, always meant the power of the General Assembly to determine the jurisdiction of the courts by the enactment of suitable laws. "Such jurisdiction," as used in the 1944 Amendment, plainly means the kind or nature of the jurisdiction which the General Assembly sees fit to provide. "Review" means "a second or repeated view; judicial reexamination" (Webster's New International Dictionary, Second Edition). By giving this language the liberal interpretation permitted and in the light of Ohio constitutional history, the determination that the General Assembly was empowered to provide for a "reexamination" of a case appealed on facts as well as on law seems manifest to us.

It is stated in Williams v. United States, 289 U.S. 553, at page 572, that "* * * in expounding the Constitution of the United States, every word must have its due force, and appropriate meaning * * *." We therefore find no difficulty in determining that the General Assembly was fully authorized by the 1944 Amendment to pass legislation to invest the Courts of Appeals with the jurisdiction to entertain appeals on questions of law and fact and to provide the method and procedure necessary.

The Supreme Court of Ohio must have come to the same conclusion when it decided the case of Youngstown Municipal Ry.Co. v. City of Youngstown (1946), 147 Ohio St. 221. The 1944 Amendment says that, "All laws now in force, not inconsistentherewith, shall continue in force until amended or repealed." The Supreme Court held that the word "laws" as used in this sentence included the Constitution and that, "Unless and until there is * * * legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted."

Now, if the 1944 Amendment did not empower the General Assembly to pass legislation to give the Courts of Appeals jurisdiction to hear cases appealed to them on questions of law *Page 409 and fact, it would necessarily follow that the 1912 Amendment, which did provide such jurisdiction in chancery cases, would be inconsistent with the 1944 Amendment in such respects, and for this reason appeals on questions of law and fact to the Courts of Appeals would no longer exist. That the Supreme Court felt that the General Assembly under the 1944 Amendment was empowered to enact legislation to provide for law and fact appeals is apparent from its decision. Also see Schottenstein v.Newburger, 148 Ohio St. 71.

The statutes enacted by the General Assembly strike at the very heart of the unsatisfactory conditions that prevailed in law and fact appeals by providing that the cause in the Court of Appeals be tried on the record made in the trial court and that only such additional evidence as may be authorized by the Court of Appeals in the interest of justice may be produced in that court. These sections make a trial with witnesses testifying on the appeal impossible and require that the parties in an appeal on questions of law and fact have a full and complete trial in the original forum intended for such proceedings. Moreover, they provide for a "review" with power to "weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case * * *" which, in contemplation of law, is the equivalent of a trial denovo and brings to fruition the concept of one trial and one review.

We hold, therefore, that Sections 2501.02 and 2505.21, Revised Code, are constitutional enactments of the General Assembly passed by it under powers granted it by Section 6, Article IV of the Constitution of Ohio, and that, as a consequence, Courts of Appeals have the jurisdiction to hear the case herein appealed on questions of law and fact.

The motion to dismiss the appeal on questions of law and fact is accordingly overruled.

Motion overruled.

HURD, J., concurs.