The relator seeks a writ of prohibition to prevent the mayor of Blue Ash from exercising his judicial jurisdiction to conduct the trial of relator who is charged with several traffic offenses. The facts are stipulated and the parties agree as to the single question of law presented.
The only issue to be determined by this court is: In a charter city, where a defendant is compelled to stand trial before the mayor who has no executive power or duties, but who is a voting member of the city council which determines the appropriations and expenditures of revenue derived from fines, bond forfeitures and court costs assessed by the mayor, is the defendant denied due process of law under the provisions of the Fourteenth Amendment to the United States Constitution?
The relator asserts that he is denied due process under the Fourteenth Amendment, and cites in support of his contention Ward v. Monroeville (1972), 409 U. S. 57; Tumey v. Ohio (1927), 273 U. S. 510, 533; and Dugan v. Ohio (1928), 277 U. S. 61. The respondent, who agrees as to the question of law presented, relies upon the same cases.
The writ is denied on authority of Dugan v. Ohio, supra, and Monroeville, supra, which approved Dugan.
The issue in the instant case was decided by this court in Dugan v. State (1927), 117 Ohio St. 503, which decision was affirmed by the United States Supreme Court in Dugan v. Ohio, supra (277 U. S. 61), in an opinion written by Chief .Justice Taft. That decision was announced 14 months after *83Tumey v. Ohio, supra (273 U. S. 510), which opinion was also written by Chief Justice Taft. The decision in Dugan v. Ohio, supra, was discussed and approved in Ward v. Monroeville (1972), 409 U. S, 57.
The facts in the instant case are on all fours with the facts in Dugan v. Ohio. Chief Justice Taft, in Dugan v. Ohio, supra, at page 64, distinguishes that case from Turney v. Ohio.
Mr, Justice Brennan, in Ward v. Monroeville, supra, at page 60, distinguished Dugan from Monroeville, and approved Dugan, as follows:
uThis situation [Monroeville] is wholly unlike that in Dugan v. Ohio, 277 U. S. 61 (1928), which the Ohio Supreme Court deemed controlling here. There the Mayor of Xenia, Ohio, had judicial functions but only very limited executive authority. The city was governed by a commission of five members, including the mayor, which exercised all legislative powers. A city manager, together with the commission, exercised all executive powers. In those circumstances, this court 'held that the mayor’s relation to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.” (Emphasis added.)
When applied to the instant case, Dugan, and Monroeville in reaffirming Dugan, are exactly in point and controlling as to the single issue raised by the relator in his complaint and in his brief. The writ must be denied unless this court chooses to extend the scope of the Fourteenth Amendment to the United States Constitution beyond the limits set by the United States Supreme Court in Monroe-ville, supra, in approving Dugan, supra.
E. C. 1905.01 establishes a mayor’s court “in all municipal corporations not having a police court and not being the site of a municipal court.”1
Section 1 of Article IY of the Ohio Constitution empowers the General Assembly to establish mayors’ courts and vests judicial power in such courts. That section provides, in pertinent part:
*84“The judicial power of the state is vested in * * * such other courts inferior to the Supreme Court as may from time to time be established by law.”
The accepted rule is: An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and the constitutional provisions are clearly incompatible. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N. E. 2d 59.
There is nothing in the record from which it may be inferred that the mayor, as judge, has any, direct or indirect, personal or official substantial pecuniary interest in reaching a conclusion against relator.
The record indicates that the relation of respondent, as one of the seven members of the city council, to the fund contributed to by his fines as judge, or to the executive or financial policy of the city is too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.
If the court were to declare all criminal trials in mayors’ courts unconstitutional there is nothing this court could do to provide another court to handle the volume of eases now handled daily by mayors’ courts. Further, upon the record in the instant case, if this court were to reach out to declare all mayors’ courts’ jurisdiction to try criminal cases unconstitutional it would be an unwarranted invasion of the power vested in the General Assembly by the Constitution.
The distinction between Tumey and Monroeville on the one hand, and Dugan and the instant case on the other, is clear. Tumey and Monroeville involve municipalities in which the mayor had broad executive powers and responsibilities, while Dugan and the instant case involve municipalities in which the mayor has no executive power or responsibility, but only the legislative power that a single member of a municipal council or commission holds.
The facts in the instant case are similar to the facts in *85Dugan, supra. In Dugan, the Supreme Court of the United States found no violation of due process.
This court exercises judicial restraint in the instant case in permitting the General Assembly to properly resolve the problems created by the decision of the United States Supreme Court in Monroeville.
The writ is denied.
Writ denied.
Herbert, Stern and W. Brown, JJ., concur. Corrigan, Celebrezze and P. Brown, JJ., dissent.For exceptions see R. C. 1905.01 and 1901.021,