dissenting. Once again we are presented herein with a poser of pre-eminent significance and constitutional magnitude.
It is precisely stated in appellant’s brief, Proposition of Law No. 2, as follows:
“A defendant is denied due process of law in violation of the Fourteenth Amendment to the United States Constitution when he is compelled to stand trial before a mayor whose executive responsibilities for revenue production and law enforcement prevent him from acting as a disinterested and impartial judicial officer.”
Appellant was charged by chief of police Conners of the Monroeville Police Department, first, with violating Ord. No. 47-12, Section 2 of the ordinances of that village for failing to comply with a lawful order of a police officer to stop and submit to a safety check and, secondly, with failing to produce a driver’s license on the request of the police officer at the same time. Appellant was convicted and fined on each charge in the mayor’s court of the village of Mon-roeville. Appeal was taken to the Court of Common Pleas where the judgments were affirmed and were consolidated it: an appeal to the Court of Appeals for Huron County, which also affirmed the judgments.
The record shows that the appellant was flagged down at a truck check-point set up in Monroeville by an agent of the Public Utilities Commission of Ohio for the purpose of checking trucks on a state highway (Route 20) for defects, illegal loads and anything that would arise. The commission has no authority to make an arrest, but its agent, if he finds a violation, does the checking and files an affidavit, referring the result to the policeman of the village, who makes the arrest under a village ordinance. It is the policy of the commission to encourage certain villages to pass ordinances to help the commission. Such checks are made in Monroeville, which has passed this type of ordinance.
The record establishes that a substantial portion of the general fund of the unchartered village of Monroeville *190was derived from fines and costs levied by the mayor in the mayor’s court as follows:
The record reflects further that the maintenance of this ■sizeable revenue from fines and costs to the village was of such importance that an ordinance was enacted hiring a ■management consultant firm to study the threat to its revenue posed by the 1959 County Court Law reducing the jurisdiction of mayors’ courts.1
*191The executive power of villages is vested in the mayor. He is the chief conservator of the peace therein. He is also the president of the legislative authority and presides' at all regular and special meetings thereof with authority to vote if there is a tie. The mayor is responsible for seeing that all ordinances of the municipality are obeyed and enforced.
He must give periodic account to the legislative authority (council) of the financial condition of the municipality. The mayor fills vacancies in any municipal department. It is his duty to supervise the conduct of all the officers of the municipal corporation, inquire into and examine the grounds of all reasonable complaints against any of such officers, and cause their violations or neglect of duty to be promptly punished or reported to the proper authority for correction.
All fines, forfeitures and costs in ordinance cases and all fees collected by the mayor are paid by him into the municipal treasury on the first Monday of each month.
In a mayor’s court, established by virtue of R. C. Chapter 1905, the mayor has jurisdiction to hear and deter: mine any prosecution for the violation of an ordinance' of the municipal corporation, and has jurisdiction in all criminal causes involving moving traffic violations occurring on state highways located within the boundaries of the municipal corporation. The mayor, presiding at any trial,' may punish for contempts, compel the attendance of jurors and witnesses, and establish rules for the examination and trial of all cases brought before him, in the same manner as-judges of county courts.
So the mayor in this case actually possesses executive, legislative and judicial power.
As aptly pointed out in appellant’s brief:
“The scrupulous concern in American jurisprudence' for the impartiality of its judges has its origins in two much, venerated principles of government.
“The maxim that no man ought to be a judge.in his own cause {‘Nemo debit esse judex in propria cmsa.’) was *192rigidly applied at common law.2 Indeed, some courts went so far as to disqualify a judge merely because be was an inhabitant of the town which would receive part of the fine should the accused be convicted. See e. g. Pearce v. Atwood, 13 Mass. 324 (1816).3
“The second principle generating concern for the avoidance of conflicts of interest on the part of the judiciary was the doctrine of separation of powers, by which the framers of the Constitution endeavored to protect individual liberty by the distribution of power among the several branches of government. Thus, Alexander Hamilton declared in No. 78 of the Federalist Papers:
“ . . the general liberty of the people can never be endangered from [the judiciary]; I mean so long as the judiciary remains truly distinct from both the legislative and the executive. For I agree that “there is no liberty if the power of judging be not separated from the legislative and executive powers”.’4
“The principle of separation of powers was carried forth into the Ohio Constitution,5 and recognized by Ohio courts as applicable to municipal corporations. Thus, in Porter v. City of Oberlin, 1 Ohio St. 2d 143 (1965), this court struck down a portion of the Oberlin fair housing law on the ground that it permitted a legislative commission to exercise judicial and/or executive powers. As long *193ago as 1928, the Hamilton County Common Pleas Court declared:
“ ‘Mayors, and for that matter, any other officials, have no right to have and exercise both executive and judicial powers at the same time. Such a situation violates the fundamental principle of American government, to-wit, that of the separation of the departments of government, and in the judgment of the court, a mayor having been created as an executive officer, he is to be given executive powers only, and that it is a denial of due process of law for one to be forced to trial before him involving his liberty or property.’ In re von Uehn, 27 Ohio N. P. (N. S.) 167, 172.
“This long standing commitment of our legal system to an impartial and disinterested judiciary is violated when the judge is a mayor who has executive responsibilities for the raising and expenditure of revenue, for the enforcement of the laws, for the conservation of the peace, and for the appointment and supervision of the police force. ^ # # 9 9
In this case, too, in connection with the mayor’s executive responsibilities, there must necessarily be a grave concern on his part for the financial condition of the village. The question then might occur to the outside observer: Is this a salutary climate for evenhanded justice where fines and costs imposed in the mayor’s court represent a percentage of total revenue to the general fund of the village of over one-third to one-half during the five-year period, 1963-1968?
Then, there is also the fact that the mayor, as executive officer, appoints the chief of police and police officers of the village, and as a judge he evaluates their credibility as against opposing witnesses.
Too, the mayor, as president of the council, has a part in setting the salaries of these police officers.
Are these official interests as parts of the mayor’s various capacities so minuscule, so trifling, so remote or so insignificant that his sitting as a judge in a case in the mayor’s court may not contribute to a great fear on a *194defendant’s part that he will not be fully accorded the due. process of law to which he is entitled?
The city replies in the negative, and cites Tumey v. Ohio (1927), 273 U. S. 510, and Dugan v. Ohio (1928), 277 U. S. 61, in support of its position. Tumey differs from our factual situation in that the mayor received certain fees and costs in the amount of $12 for acting in a judicial capacity in the case. The direct pecuniary interest of the mayor in that case was held to be a denial of due process to the defendant. In Dugan, the charter city of Xenia had a commission form of government and the mayor was a member of the commission of five. A city manager was the executive and the mayor exercised only judicial functions. That case, too, differs from our factual situation.
It is with profound mindfulness of the unrest with laws and the enforcement of laws in our country today that I reemphasize the importance of public confidence in the impartiality of all courts. It seems to this member of the court that this confidence, which we strive to merit in the judiciary, may be easily eroded with a mayor’s court of this type. This observation is not to be considered in any way as a reflection on the integrity or capacity of the mayor who presided as judicial officer at this trial. But I am fearful that a defendant brought into a mayor’s court may, with reason and persuasion, rightly complain that he was not likely to get a fair trial or a fair sentence from a judge who, as chief executive, is responsible for the financial condition of the village and who has the chief of police and other police officers under his supervision; who passes on the latters’ credibility in trials before him; who levies fines which total in some years up to half of the revenue income, of the village; who is not an attorney.
As the Supreme Court said in Tumey, at page 532: “ * * * Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state- and the accused denies the latter due process of law. ’ ’
*195It is equally important that there must not only be justice, but there must also be the appearance of justice, as was emphasized by this court and also by the United States Supreme Court in the following cases:
“It is of vital importance that the litigant should believe that he will have a fair trial.” State, ex rel. Turner, v. Marshall (1931), 123 Ohio St. 586.
“# * * Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U. S. 11, 14.” In re Murchison (1955), 349 U. S. 133, 136.
My conclusion is that these convictions should be reversed for the reason that, under the facts reflected by this record, the defendant was not given the benefit of his constitutional right to due process of law.
’Ordinance No. 59-9:
“WHEREAS, the legislation known as the County Court law passed by the 102nd General Assembly greatly reduces the jurisdictional powers of Mayor Courts as of January 1, 1960; and
“WHEREAS, such restrictions may place such a hardship upon law enforcement personnel in this village and surrounding areas as to endanger the health, welfare and safety of persons residing or being in our village; and
“WHEREAS, other such provisions of this legislation may cause such a reduction in revenue to this village that an additional burden may result from increased taxation and/or curtailment of services essential to the health, welfare and safety of this village; . . .
“BE IT ORDAINED BY THE VILLAGE OP [MONROEVILLE] OHIO:
“Section 1: That the services of the management consulting firm of Midwest Consultants, Incorporated of Sandusky, Ohio, be employed to ■ conduct a survey and study to ascertain the extent of the effects of the County Court Law on law enforcement and loss of revenue in and to the Village of [Monroeville], Ohio, so that said Village can prepare for ■the future operations of the Village to safeguard the heath [sic], welfare and safety of its citizens * *
“The most celebrated application of this doctrine took place in Bonham’s Case (K. B. 1610), 8 Coke 118a, 77 Eng. Rep. 646. See also Rex v. Great Chart, Burr. S. C. 194, Stra. 1173, where it was said, ‘ “And by the common law, if an order of removal were made by two justices, and one of them was an inhabitant of the parish from which the pauper was removed, such order was illegal and bad, on the ground that the justice who was an inhabitant was interested as being liable to the poor’s rate.’” (Quoting from Hawkins, 2 Pleas of the Crown).”
“Although this extreme position was rejected in Ohio, Thomas v. Town of Mt. Vernon (1839), 9 Ohio 290, the fact that the question posed a serious issue is indicative of the depth of commitment to the impartiality of the magistrate.”
“‘Quoting from Montesquieu, Spirit of Laws, Vol. 1, page 181.”
“‘See Articles II, III and IV distributing the power of the state among legislative, executive and judicial branches respectively.”