USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 5
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GEORGE W. MCILVAINE, of Tuscarawas county, was elected a member of the Supreme Court in 1870, re-elected in 1875 and again in 1880, serving for fifteen years. While the biographer is unable to find in the volumes of con- temporaneous history, or later collected biographies, anything appertaining to the antecedents or early life of this man, he is remembered by the Bar as a courteous, capable gentleman. The reports of opinions promulgated by the court attest his ability as a lawyer and a judge. He was a quiet, frank, candid judge, who made no pretenses to learning which he did not possess. His asso- ciates on the Bench were among the ablest who have held position under the present Constitution.
WILLIAM H. WEST was elected judge of the Supreme Court in 1871 while a resident of Logan county, but resigned after serving two years. It is suf- ficient to remark in this connection that he was at the time a great lawyer, whose ability had attracted the favorable notice of the profession and whose character commanded the respect of the people. He is one of the few emi- nent lawyers and orators of the old school yet living and actively engaged in practice. An extended personal biography will be found in this work.
WALTER F. STONE was appointed by the governor in 1873 upon the resig- nation of Judge West and elected the following October for the remainder of the term. He resigned on the 10th of September, 1874. He was a native of Ohio, born at Wooster, November 18, 1822. His parents had come to the State from Vermont. He was educated at Pittsburgh and read law under Walter R. Lowry, of that city. After admission to the Bar he located at Sandusky City, in 1846. For a time he was associated in partnership with Judge Ebenezer Lane. After twenty years of active practice he was elected judge of the Court of Common Pleas, in 1865, re-elected in 1870, and served until promoted to the Supreme Bench. His resignation was occasioned by ill
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health, from which he failed to recover, and his death took place at Oakland, California, in December following
GEORGE REX, of Wayne county, was appointed to fill the vacancy occa- sioned by the retirement of Judge Stone. He was elected in October, 1874, and served the remainder of the term. He was born at Canton, July 25, 1817, educated in the common schools and in the Capital University; was engaged in teaching for a time, and after a course of reading, was admitted to the Bar in 1842. He located for practice at Wooster, served as prosecuting attorney for Wayne county four years; served as a member of the State Senate and president pro tempore in 1851. Afterwards he served two additional terms as prosecuting attorney, and in 1867 was again elected to the State Senate. Serv- ice on the Bench impaired his health so that he declined a re-election and re- turned to the practice of law, but lived only two years. He was an earnest, conscientious man, public-spirited in the advocacy of popular education and whatever tended to promote material prosperity. He had strong convictions and undoubted courage.
WILLIAM GILMORE, of Preble county, was elected in 1874 and served one term. He was born in Bedford county, Virginia, April 24, 1821, and came to Ohio with his parents when four years of age. His education was limited to the district school and Hopewell Academy. He studied law with Thomas Milliken, of Hamilton, and was admitted to the Bar in 1847. After practic- ing one year in Hamilton he removed to Eaton, where he continued to reside until the close of his service upon the Supreme Bench, when he removed to Columbus and re-entered the practice. He held the office of prosecuting attorney of Preble county two terms. In 1857 he was elected to the Common Pleas Bench and held that position by successive elections until 1874. His personal popularity was sufficient to overcome a large adverse majority when the candidate of a political party in his county. He was also popular in the profession, as evidenced by his election to the presidency of the State Bar As- sociation in 1885 and his appointment as delegate to the American Bar Asso- ciation in 1894.
WASHINGTON W. BOYNTON was elected to the Supreme Court in 1876 from Lorain county, and served one term. He was a native of that county, which continued to be his home until retirement from the Bench, when he located in Cleveland. A full sketch of his life appears elsewhere in this work.
JOHN W. OKEY, of Franklin county, was elected judge of the Supreme Court in 1877, re-elected in 1882 and died in office in 1885. He was one of the strong and capable judges, with the persistence of the English and the firinness of the Scotch, from which he was descended, with a generous vein of Irish blood. He was born in Monroe county, Ohio, and educated in Monroe Academy ; was admitted to the Bar in 1849. For three years, beginning in 1853, he served as probate judge of his county. In 1856 he was elected judge of the Court of Common Pleas and subsequently re-elected. During the whole course of his life he was devoted to the profession of law, exhibit- ing zeal and industry in whatever he undertook. He served as a member of
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the codifying commission appointed by the governor to revise and codify the statutes of the State. In connection with S. A. Miller he prepared and published a work on municipal law, in 1869. His qualifications for judge of the highest court were unusually ample by general reading, close application to a study of the principles of the law and long training on the Bench. He appeared to have an intuitive sense of what the law should be, and in the formation of an opinion was guided as much by his inner consciousness as by precedent, or the published opinion of a court. He was careful, cautious, deliberate, conscientious and immovable when his conclusion had been formed. Respectfully considerate of the views of others, he was contented to be guided by his own conscience as to what is right in law as well as in morals.
WILLIAM W. JOHNSON, of Lawrence county, was elected in 1879, re-elected in 1884 and resigned November 9, 1886. He was born in Muskingum county, August 17, 1826. His father was a native of Connecticut and his mother a Virginian, whose father was a Revolutionary soldier. His knowledge of books as a boy was limited to that which he was able to obtain by reading at home after a day's work was done and study during the hours not devoted to hard work on the farm. He was permitted to spend a single term in Muskingum College before entering upon a course of reading in law in the office of Judge Converse at Zanesville. He was admitted to the Bar in 1852 and six years later elected judge of the Court of Common Pleas. By successive elections he served on this Bench for fifteen years and then retired on account of impaired health. He was a hard student all of his life and was thus enabled to cure the defects of an early education. He possessed the judicial traits which weigh carefully any question submitted to the judgment, and a love of justice con- tributed to his arriving at correct conclusions.
As the judges appointed during the last two decades belong to contempo- raneous history, it is sufficient for the purposes of this article to mention them in chronological order.
Nicholas Longworth, of Cincinnati, was elected in 1881, and resigned in 1883, after serving one year.
John H. Doyle, of Toledo, was appointed March 10, 1883, by Governor Foster, to fill the vacancy thus occasioned, until the election next succeeding.
William Y. Upson, of Summit county, was appointed by the governor March 4, 1883, on the death of Judge White, and served to the close of the term in the December following.
Martin D. Follett, of Washington county, was elected in October, 1883, to serve the remainder of the term of Judge Longworth, which expired in Feb- ruary, 1887.
Selwin N. Owen, of Williams county, was elected in October, 1883, and served one full term. Judge Owen was and is especially gifted in the effect- ive use of the English language. His style is fluent and racy.
Gibson Atherton, of Licking county, was appointed in August 1885, to fill a vacancy created by the death of Judge Okey, serving until December 18th of that year, when he was succeeded by William T. Spear, of Trumbull county,
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who had been elected in October to fill out the term. Judge Spear was elected in 1887 and again in 1892. He was a member of the court at this date.
Thaddeus Minshall, of Ross county, was elected in 1885, re-elected in 1890, and again in 1895. He is still on the bench.
Franklin J. Dickman, of Cuyahoga county, was appointed November 10, 1886, to fill the vacancy created by the resignation of Judge Johnson. In 1889 he was elected for a full term, which expired in 1895.
Marshall J. Williams, of Fayette county, was elected in 1886, and re- elected in 1891. His second term expires in 189 ..
Joseph P. Bradbury, of Gallia county, was elected in 1888, and re-elected in 1893, for a term that runs until February, 1899.
Jacob F. Burkit, of Hancock county, was elected in 1892, for a term run- ning to 1898.
Jacob A. Shauck, of Montgomery, was elected in 1894, for a term which extends into the last year of the century.
The total number of judges appointed and elected under the Constitution of 1851 is forty-one. Twenty-three of them were born in the State of Ohio. Massachusetts, Connecticut and Vermont each contributed one, New York five, Pennsylvania three, Virginia three, and one was foreign-born.
Any history of the Supreme Court of Ohio which contained no reference to its valuable coadjutor, the Supreme Court Commission, would be mani- festly incomplete. The first commission, consisting of five lawyers, some of whom were among the ablest in the State, was created in February, 1876, limited to an existence of three years, and concluded its labors in 1879. The members originally appointed were Josiah Scott, of Crawford; William W. Johnson, of Lawrence ; D. Thew Wright, of Hamilton ; Richard A. Harrison, of Franklin ; Luther Day, of Portage, and Judge Whitman, of Hamilton. Judge Whitman, during the first year, resigned, and Thomas Ashburn, of Clermont, was appointed to fill the vacancy. The second commission, appointed in 1883 for a term of two years, consisted of the following able jurists : Moses W. Granger, of Muskingum ; George K. Nash, of Franklin ; Franklin J. Dickman, of Cuyahoga; Charles D. Martin, of Fairfield; John McCauley, of Seneca. The Codifying Commission, which began its labors in 1875 and completed them in 1879, was composed as follows: Michael A. Dougherty, Fairfield ; John W. Okey, Franklin ; Luther Day, Portage. Judge Okey resigned in 1877 to accept a seat on the Supreme Bench, and was suc- ceeded by his son George B. Okey. Judge Day resigned in 1876 to enter upon his service as judge of the Supreme Court, to which he had been elected. It is creditable to the profession in the State that the Supreme Court has always observed a high standard of morality and integrity ; that it has not, during more than a century of existence in the territory and the State, been liable to an accusation of bribery or corruption ; that its decisions and opinions gener- ally evince learning and wisdom. Its published volumes of reports take high rank among those of other States in the Union, as logical expositions of the law.
THE CIRCUIT COURT OF OHIO.
In order to present a satisfactory account of the establishment and juris- diction of this court, which gives to the judicial system of Ohio the complete- ness which satisfies the Ohio lawyer and supplies the model for a perfect judicial system when an intermediate court is to be established, it is absolutely necessary to say something of the establishment and continuance of its prede- cessors in Ohio.
By the ordinance of July 13, 1787, "for the government of the territory of the United States, northwest of the River Ohio," the wise and beneficent statesmanship of which has been the theme of native and foreign commenta- tors on our system of government and the subject of many oratorical eulogies, it was ordained that "said territory, for the purposes of temporary govern- ment, be one district," and that "there shall also be appointed (by Congress) a court to consist of three judges, any two of whom may form a court, who shall have a common-law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices ; and their commissions shall continue in force during good behavior." After the adoption of the Federal Constitution, Congress enacted (August 7, 1789) that all officers in the Northwest Territory which the ordi- nance of July 13, 1787, had provided should be appointed by Congress should thereafter be appointed by the President of the United States, by and with the advice and consent of the Senate. The governor and judges of the terri- tory were given, by this ordinance, legislative powers, subject to the approval of Congress, until the organization of the general assembly in the district. The first judges appointed were Samuel Holden Parsons, of Connecticut ; James M. Varnum, of Rhode Island, and John Cleve Symmes, Chief Justice of New Jersey. Judge Symmes was appointed in place of John Armstrong, who declined the appointment.
By an act of Congress (May 8, 1792) any one of the judges was autho- rized in the absence of the other judges to hold court. These judges consti- tuted what was called the General Court of the territory and had the power of reviewing and revising the decisions of all inferior tribunals, and their decision was final. Until the organization of the general assembly the gover- nor had power to appoint all magistrates and to lay out the parts of the terri- tory where the Indian title had been extinguished into counties and townships. After the organization of the general assembly these powers were vested in that body. Under the judicial system established for the territory no court was established between the courts of Common Pleas and the General Court,
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1167039
but provisions were made by the governor and the judges, and afterwards by the general assembly, for the holding of Circuit Courts in the various counties by one or more of the territorial judges for the trial of issues of fact joined in cases in the general court or removed by appeal or otherwise from the Courts of Common Pleas, in the counties or districts where the issues arose. The only differences between the provisions in this regard made by the governor and judges and by the general assembly were that the general assembly divided the territory into districts which embraced one or more counties, provided that the sessions of the Circuit Courts should be held once a year instead of twice a year and that the Circuit Courts of Washington and Hamilton counties should not be held by less than two judges of the General Court.
Article III. of the Constitution of 1802 provided that the judicial power of the State, both as to matters of law and equity, should be vested in a Su- preme Court, in Courts of Common Pleas for each county, in justices of the peace, and in such other courts as the legislature from time to time might establish. The Supreme Court was to consist of three judges, any two of whom constituted a quorum, vested with such original and appellate jurisdic- tion, both in law and equity, as directed by law. Power was given to the gen- eral assembly to add another judge to the Supreme Court after the term of five years, in which case the State might be divided into two circuits by the judges, within which any two of the judges might hold court. The State was divided into three Common Pleas circuits, in each of which a president of the courts was to be appointed, and in each county not more than three nor less than two associate judges. "The president and associate judges in their respect- ive counties, any three of whom constituted a quorum, composed the Court of Common Pleas, having common law and chancery jurisdiction in all cases directed by law. There was also a provision that after five years the general assembly might increase the number of presidents and circuits. The judges of the Supreme Court and Courts of Common Pleas were given complete crim- inal jurisdiction, in such cases and in such manner as might be pointed out by law. The judges of the Supreme Court, the presidents and associate judges were appointed by a joint ballot of both houses of the general assembly for the term of seven years, "if so long they behave well." This article of the Constitution further provided that the Supreme Court should be held once a year in each county, and the Courts of Common Pleas in each county, at such times and places as prescribed by law.
In this judicial system there was no provision for an intermediate court, but the necessity for such a court soon became apparent and it was indirectly establislied by the Act of February 17, 1808. This Act provided, agreeably to the provisions of the Constitution, for an additional judge of the Supreme Court, and authorized the judges to divide the State into two districts within which any two of the Supreme Court judges might hold court. The judges of the Supreme Court were required annually to hold an extraordinary session, which it was the duty of at least three judges to attend, within each Common Pleas circuit, for the sole purpose of hearing and determining cases
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reserved by the Supreme Court held in the districts. The counties mentioned in the Act, where these extraordinary sessions were to be held, were Warren, Ross, Fairfield and Columbiana. Thus was established the two branches of the Supreme Court, known under the Constitution of 1802 as the Supreme Court on the Circuit and the Supreme Court in Bank, and gave a dignity and superiority to the Court in Bank which made it seem like another court with superior powers. The cases which came before the Court in Bank were those in which the judges holding the court on the circuit differed on a question of law, or in which a new and difficult question of Jaw arose, or where in the trial of a cause the judges were divided in opinion as to the admission or rejec- tion of testimony and were unable for that reason to decide a motion for a new trial. In such cases the question or questions were postponed, to be decided by the Court in Bank. This law continued in force until February 16, 1810, when it was repealed. By the Act of February 23, 1816, the number of judges of Supreme Court was again increased to four, and by the Act of January 20, 1823, it was made the duty of " all the judges of the Supreme Court to meet annually in the town of Columbus, immediately after the close of the circuit, in order to consult upon and decide " all important or difficult questions either in law or equity arising before the Supreme Court in any county which were reserved by the judges holding that court for decision at Columbus, thus again establishing the two divisions of the Supreme Court and in effect an intermediate court. This Act was repealed by the Act of March 8, 1831, which latter Act took effect June 1, 1831. March 10, 1831, an Act was passed " to establish a Court in Bank, and to regulate its practice." By this Act all the judges of the Supreme Court (any three of whom constituted a quorum) were required to meet annually in the city of Columbus to hold a Court in Bank for the final adjudication of all such questions of law as might be reserved in any county for decision. The provisions as to the reservation of questions of law were that " when any important or difficult question shall arise in any pro- ceeding at law or equity, pending before the Supreme Court in any county, the judges thereof may reserve the same ; and all other questions as to which the judges may be divided in opinion, shall, on motion of either party or his- counsel, be reserved for decision, at the term of the Court in Bank, next there- after to be holden." This was substantially the same as the Act of January 20, 1823, except that in addition to the power given to the judges on the circuit to reserve important and difficult questions for the decision of the Court in Bank, it gave the parties the right to have all questions as to which the judges were divided in opinion, reserved for hearing before the same tri- bunal, thus combining the provisions of the Act of February 17, 1808, and of January 20, 1823, in the establishment of this quasi intermediate court and giving the privilege to parties of appealing to the Court in Bank. The Supreme Court held its sessions on the circuit and in bank in accordance with the requirements of this Act until the adoption of the Constitution of 1851.
That Constitution provided that the judicial power of the State should be vested in a Supreme Court, in District Courts, Courts of Common Pleas,
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Courts of Probate, justices of the peace, and in such other courts inferior to the Supreme Court, in one or more counties, as the general assembly might from time to time establish. By its terms the State was divided into nine Common Pleas districts and each district into three parts, in each of which parts a Common Pleas judge was to be elected. Power was given to the general assembly to increase or diminish the number of Common Pleas districts, the number of judges in any district, change the districts or the subdivisions thereof, or cstablish other courts whenever two-thirds of the members elected to each house concurred therein. District Courts which were given original jurisdiction in quo warranto, mandamus, habeas corpus and precedendo the same as the Supreme Court, and such appellate jurisdiction as might be provided by law, were composed of the Common Pleas judges of the respective districts and one of the judges of the Supreme Court, any three of whom formed a quorum. At least one term of the District Court was required to be held in each county in the district annually. Suits pending in the Supreme Court in Bank were transferred to the Supreme Court, and the District Courts in their respective counties were declared to be the successors of the then Supreme Court on the circuit, and all suits, etc., pending in the Supreme Court in the several counties were transferred to the respective District Courts.
The distrust with which the lawyers regarded this intermediate court made its first appearance in the Act of February 19, 1852, which provided that when an important or difficult question should arise in any proceeding pending before the District Court in any county the judges of the District Court or the judge of the Supreme Court sitting in said district might, on motion of either party, cause the same to be reserved and sent to the Supreme Court for its de- cision. For the purposes of the District Courts the State was divided into five judicial circuits and it was provided that the judge of the Supreme Court pres- ent at the sessions of the District Court should preside. This Act was the first one defining the jurisdiction of the District Court, and gave the District Court, in addition to its original jurisdiction, power on good cause shown to issue writs of error, certiorari, supersedeas, ne exeat and all other writs not specially provided for by statute whenever such writs might be necessary for the cxer- cise of its jurisdiction in the due administration of right and justice throughout the State, and it was given appellate jurisdiction from the Court of Common Pleas in all civil cases in which the Court of Common Pleas had original juris- diction, which was in all cases where the matter in dispute exceeded the sum of $100. The appeals werc to be given, tried, heard and decided in the Dis- trict Court in the same manner as though the District Court had original jur- isdiction of the case and upon the same pleadings, unless for good cause shown amendments were permitted. It was further provided that a judgment ren- dered or final order made by the Court of Common Pleas, Superior Court of Cleveland, or Superior or Commercial Courts of Cincinnati might be reversed, vacated or modified by the District Court for errors appearing on the record.
By the Act of April 12, 1858, (55 Ohio Laws, 81) the right of appeal to the District Courts was limited so it could only be taken from final judgments,
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orders or decrees in such civil actions as the parties had not the right by vir- tue of the laws of this State to demand a trial by jury, and this same act pro- vided that a judge of the Common Pleas Court who had decided the case in the Common Pleas should not sit on the review of his own decision in the Dis- trict Court on error or otherwise when there was a quorum in the District Court without him.
The business of the Court in Bank having increased very rapidly, so as to require the attendance of the judges of the Supreme Court during almost the entire year, it was provided by Act of March 29, 1865, that the judges of the Supreme Court should be relieved from duty in the District Court in the year 1865, and by the Act of April 2, 1870, that if at the December session of any year the judges of the Supreme Court should deem it for the best interests of the State or that the business of the Supreme Court required that they should remain in session, they might continue in session and should for that year be relieved from attendance at the sessions of the District Court either in whole or in part as they might elect.
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