dissenting in part. I concur in the judgments in the Heaton and Dodge cases, but dissent from paragraphs two and three of the syllabus, and from the judgment in the Benjamm case.
In my opinion, the two Dodge cases (Nos. 41193 and 41194) should be affirmed for the reasons stated by Guern*80sey, J., in the opinion of the Court of Appeals in State v. Dodge (1967), 10 Ohio App. 2d 92, 226 N. E. 2d 156.1
In the Benjamin case (No. 41228), the defendant has not been in jeopardy. In such an instance, there is not the same constitutional reason for a decision of the Court of Appeals not affecting the judgment of the trial court. Also, in an instance such as that in the Benjamin case (i. e., a ruling on a motion to dismiss which is regarded by Section 2937.04, Revised Code, as the equivalent of a “motion to quash, plea in abatement or demurrer”), the General Assembly in Section 2945.70, Revised Code, expressed an intention that a judgment of reversal by the Court of Appeals should affect the judgment of the trial court.
However, the appellate proceedings provided for in Sections 2945.67 to 2945.70, inclusive, Revised Code, specify that the prosecutor’s contentions are to be opposed only by “the trial judge and any attorney appointed by the judge to argue the exceptions against the Prosecuting Attorney # * gee in particular, Section 2945.69 and last sentence of Section 2945.68, Revised Code.
Thus, under these statutes, the Prosecuting Attorney in the Benjamin case may secure a judgment of reversal in Court of Appeals proceedings although the defendant is *81not “allowed to appear” in that court “and defend in person and with counsel”; and such judgment will be binding upon the defendant. Certainly, such proceedings in the Court of Appeals would be part of a trial. It necessarily follows that, to give effect to Sections 2945.67 to 2945.70, inclusive, Revised Code, in the Benjamin case would be to disregard the requirements of that part of Section 10 of Article I of the Ohio Constitution which reads:
“* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * #
For the foregoing reasons, the judgment in the Benjamin case should be affirmed.
I do not understand Judge Schneider’s apparent contention that the Court of Appeals should have decided the Dodge cases on their merits instead of determining that it had no jurisdiction in either Dodge case to decide anything. Neither party made any such contention.
It may be that the proposed bill of exceptions would not support a decision favorable to the prosecution in either Dodge case. However, if the Court of Appeals had no jurisdiction to determine whether that bill of exceptions would support such a decision, the Court of Appeals certainly can not be criticized for determining that it had no such jurisdiction, thereby avoiding doing something that it was unanimously of the opinion that it had no power or authority to do, i.e., pass upon the merits of the prosecutor’s appeal.
The journal entry of the Court of Appeals, setting forth the judgment appealed to this court in each of the Dodge cases reads, so far as pertinent:
“The court * * * finds that Sections 2945.67 to 2945.70, inclusive, insofar as they provide a proceeding for and prescribe a decision by Courts of Appeals under questions determined by a trial court in a criminal case where jeopardy has attached presented by the Prosecuting Attorney to the Court of Appeals by a bill of exceptions filed in that court by leave, are unconstitutional and void.”
*82Section 2 of Article IV of the Ohio Constitution, as admittedly in force prior to the May 7, 1968, election, clearly authorizes a majority of tMs court to hold a law unconstitutional and void by affirming a judgment of the Court of Appeals declaring such law unconstitutional and void.
The judgment of the Court of Appeals, in each of the Dodge cases, represents such a judgment.
Thus, after a majority of this court affirms the judgments of the Court of Appeals in the Dodge cases, the statutes there held unconstitutional and void by the Court of Appeals, become unconstitutional and void throughout the state.2 Then, there is nothing in Section 2 of Article IV as admittedly in effect prior to the May 7, 1968, election, which would authorize less than a majority of this court to revive that law and make it constitutional and valid in one judicial district of the state. This has been recognized by previous decisions of this court. Johnson v. O’Hara (1951), 156 Ohio St. 117, 100 N. E. 2d 223; Mele v. Mason (1951), 156 Ohio St. 118, 100 N. E. 2d 224; State, ex rel. Graf, v. Brown (1959), 170 Ohio St. 37, 162 N. E. 2d 123.
Hence, a majority of this court may reverse the judgment in the Heaton case, even though Section 2 of Article IV, as amended on November 7, 1944, is still effective; and it is not necessary to consider whether that section immediately ceased to be effective when the so-called Modern Courts Proposal was approved by the electorate at the May 7, 1968, election.
If it were necessary to consider such an important question of law in deciding the Heaton case, I do not believe it should be considered without the benefit of briefs and arguments from counsel.
I have considerable difficulty in understanding why effect should not be given to that part of the amendment *83actually proposed by the General Assembly and approved by the voters, which appears under the heading “EFFECTIVE DATE AND REPEAL” and reads, so far as pertinent :
“ * * * the amendment, except paragraph (B) of the schedule shall take effect January 10, 1970, and existing Sections 1 and 2, and Sections 3, 4, 6, 7, 8, 10, 12 and 14 of Article IV of the Constitution of Ohio shall be repealed from such effective date. Paragraph (B) of the schedule and the repeal of Sections 12 and 13 of Article XI adopted in 1851 shall become effective immediately upon the adoption of this amendment by the electors of this state.”
Of course, the whole proposed amendment, including the above-quoted portion of that amendment, is now a part of the Constitution of Ohio, but that does not support a conclusion that any portion of the proposed amendment approved by the voters should take effect at a time before the proposed amendment that was submitted to and approved by the voters says that that portion shall take effect.
As stated in the opinion in State, ex rel. McNamara, v. Campbell (1916), 94 Ohio St. 403, 411, 115 N. E. 29, the authority principally relied upon in Judge Schneider’s opinion:
“* * * The time when an amendment is to become effective can be submitted to the electors, as in the case of the amendments of 1912 wherein it was expressly provided when they should go into effect * *
To the same effect, see the part of paragraph one of the syllabus in that case and in this case beginning in each instance with the word “unless.”
At most, omission from the ballot description required by Section 3505.06, Revised Code, of the matter included in the proposed amendment under the heading “EFFECTIVE DATE AND REPEAL” might support a contention that that description was so misleading as to require invalidation of the election approval of the whole proposed amendment. See Beck v. Cincinnati (1955), 162 *84Ohio St. 473, 124 N. E. 2d 120; Alexander v. Toledo (1959), 168 Ohio St. 495, 156 N. E. 2d 315; and State, ex rel. Foreman, v. Brown (1967), 10 Ohio St. 2d 139, 148 to 151, inclusive, 226 N. E. 2d 116.
In State, ex rel. Commissioners of Sinking Fund, v. Brown (1957), 167 Ohio St. 71, 146 N. E. 2d 287, it is stated in the per curiam opinion:
“ * * * the possibility of misunderstanding seems remote especially when it is remembered that the full test of the amendment was published in at least one newspaper in each county once a week for five consecutive weeks preceding the election [as required by Section 1 of Article XVI of the Ohio Constitution], and that the full test was duly posted in every polling place [as required by Section 3505.-06, Revised Code, where a condensed test is used on the ballot to describe the amendment]. Of course, a greater degree of accuracy of espression would have resulted if the ballot had contained the lengthy involved technical terms of the entire amendment, but this is the very difficulty sought to be avoided by the statute which espressly states that the ‘ballot need not contain the full test of the proposal’ and that a ‘condensed test’ may be substituted therefor. * * *”
Again, in Thrailkill v. Smith (1922), 106 Ohio St. 1, 138 N. E. 532, it is stated in the opinion, at page 9:
“ * * * the time afforded for marking ballots after the voter enters the booth does not permit a study of the printed matter on the ballot * * *. All study of the subject must necessarily end before the voter enters the booth * *
Undoubtedly, many voters did read the full test of the proposed amendment, including the part thereof under the capitalized heading, “EFFECTIVE DATE AND REPEAL.”
If this court’s decision eliminates that part of the amendment, it will necessarily be eliminating a part of the amendment which the voters previously approved, although the court has no means of knowing whether the required majority of those voters would have approved the amendment without the part so eliminated.
At first, this court believed that, since Sections 2945.67 to 2945.70, inclusive, Revised Code, merely represented a recodification of Sections 13446-1 to 13446-4, General Code, which had made no provision for a bill of exceptions to the Court of Appeals (see State v. Dodge, supra [10 Ohio App. 2d 92], at 100), Section 1.24, Revised Code, would require reversal of the Benjamin case and would also be dispositive of the Dodge cases and the Heaton case. However, effective November 1, 1965 (131 Ohio Laws 682, 683, 1734), minor amendments were made to each of these sections apparently for the purpose of making them applicable to criminal appeals from a Municipal Court. These amendments were apparently made because of what was said in my opinion in Toledo v. Crews, 174 Ohio St. 253, at 255, 188 N. E. 2d 592. In making these amendments, the General Assembly retained the provisions for a bill of exceptions to the Court of Appeals, which had been added by the 1953 recodification of the General Code into the Revised Code. Hence, Section 1.24, Revised Code, will no longer require us to ignore those added words.
The motions for leave to appeal in the Dodge cases were allowed on November 15, 1967, and that in the Heaton case was allowed on March 13, 1968. Both cases were argued on May 7, 1968, the argument in the Dodge cases having been postponed so that they could be argued at the same time as the Heaton case.