State v. Bloz

WASHBURN, J.

Mike Bloz a resident of Akron was convicted of unlawful possession of intoxicating liquors by a Mayor’s court. Error was prosecuted to the Summit Common Pleas where the conviction was reversed and Bloz discharged.

The case was prosecuted in the Mayor’s Court and the Summit Common Pleas by an attorney, Edward Heizer, who was in the employ of the village under and by virtue of Sec. 6216-37 GC. Said attorney filed a petition in error in this Court on behalf of the State to obtain a review of the judgment of the Summit Common Pleas. Attorney for Bloz filed a motion to dismiss this proceeding-for want of jurisdiction, the ground being the such attorney is without authority to bring and prosecute such proceedings. Upon the motion the Court of Appeals held:

1. Sec. 13764 GC. provides “whenever a court superior to the trial court, renders judgment adverse to the state, in a criminal case or proceeding, error may be prosecuted to reverse said judgment in the next higher court by either the prosecuting attorney or attorney general. If such conviction has been for a violation of a municipal ordinance, such proceedings in error may be brought by the solicitor of the municipality.”

2. It is admitted that this was not a conviction under a municipal ordinance so the last part of 13764 GC. does not apply. The rest of the statute refers specifically to whom may bring an action, and no where is Heizer qualified.

3. It is claimed, however, that it is otherwise “provided by law” under and by virtue of 6212-37 GC., which reads: — “The council of any city or village may appropriate the necessary funds, for the purpose of hiring attorneys, detectives, or secret service officers to secure the enforcement of the prohibition laws.

“The appointmept of attorneys, detectives of secret service officers shall be for a definite term at a definite salary and not on a percentage basis.

4. This section was originally passed as a part of an act to provide for the appointment of a commissioner of prohibition, the first sixteen sections relating to this matter, and the remainder of the act having no relation except that it is on the general subject of prohibition enforcement.

5. An attorney so employed is not a public officer of any kind, either of the state or the municipality, he is simply an employee “hired” not by the state but by the village, for a fixed time and a fixed salary, to enforce the prohibition laws.

6. A lawyer hired under this section has authority to represent the municipality in prosecutions for the violation of liquor ordinances passed by the municipality where he is emr ployed and to represent the state in prosecu-triable in such municipality, but not otherwise, tions for the violation of State laws which are 7. Holding these views the proceeding is dismissed for want of jurisdiction.

(Pardee, PJ., and Funk, J., concur.)