Weiss v. Kearns , 117 Ohio App. 393 ( 1963 )

This appeal was filed in this court on questions of law and fact. Thereafter, upon motion, in the alleged exercise of its equity jurisdiction in a law and fact appeal, the court granted a request for a temporary restraining order restraining the defendant-appellees from attempting to secure satisfaction of a judgment previously entered by the Court of Common Pleas in their favor, the validity of which judgment is the subject of the action here appealed. The petition, as filed in the trial court, seeks to permanently enjoin these defendant-appellees from seeking to satisfy by execution or otherwise the judgment entered in their favor in a prior case. It is claimed that such judgment was taken without the knowledge of the plaintiff and in violation of an agreement of settlement of the claim, it being the claim of this plaintiff-appellant that the defendants had agreed to dismiss such prior action as one of the terms of the settlement agreement.

There are now before this court two motions, one to vacate the temporary restraining order as granted by this court, and the other to dismiss the appeal on questions of law and fact and retain it on questions of law, both motions being founded on the claim that this court is without jurisdiction to retry the facts in a chancery case because of the amendment to Section 6, Article IV of the Constitution of Ohio, effective January 1, 1945. It is the conclusion of the writer of this dissenting opinion that such amendment withdrew such jurisdiction from the Courts of Appeals of Ohio by striking out in said section the language, "in the trial of chancery cases," and relocating the words, "as may be provided by law," from the end of the clause granting appellate jurisdiction, to the beginning of said clause following the words "such jurisdiction."

So that the significance of the change resulting from the amendment of 1944 may be made apparent, it will be helpful to set out the wording of the 1912 amendment and the change made by the amendment of 1944. That part of Section 6, Article IV, as adopted in 1912, is as follows, after granting original jurisdiction in the trial of the prerogative writs:

"* * * and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law * * *."

The part of Section 6, Article IV, just quoted, was, by the 1944 amendment, changed to read:

"* * * and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district * * *."

Two pertinent changes dealing with the appeal of judicial decisions are immediately apparent. The phrase, "and appellate jurisdiction in the trial of chancery cases," has been deleted and the phrase, "as may be provided by law," moved from the end of the jurisdictional grant to the beginning of such grant following the words, "and such jurisdiction," as above quoted. The power to entertain appeals from final orders of administrative agencies or officers was also added if and when such appeals are provided for by law. The word "review" as retained in the 1944 constitutional amendment, as above quoted, must have been continued in the Constitution as having the same meaning as it was clearly intended to express in the constitutional amendment of 1912, as above quoted. There, the constitutional grant of jurisdiction to retry issues of fact on appeal was based on the phrase "and appellate jurisdiction in the trial of chancery cases." The substance of the phrase that follows deals with the right of the Court of Appeals to hear proceedings in error, now known as appeals on questions of law. The phrase is "* * * and, to review, affirm, modify, or reverse judgments * * *." This was the first time (1912) the word "review" was used in the jurisdictional sections of the courts in the Ohio Constitution. Also, in Section 2, Article IV of the Constitution of 1912, dealing with the jurisdiction of the Supreme Court, it was provided:

"In cases of public or great general interest the Supreme Court may, within such limitation of time as may be prescribed by law, direct any Court of Appeals to certify its record to the Supreme Court and may review, and affirm, modify or reverse the judgment of the Court of Appeals." (Emphasis added.)

This phrase was continued in the Amendment to Article IV of the Constitution of 1944. Here it is clear that upon "review," meaning at that time an error proceeding, the Supreme Court has jurisdiction to affirm, modify or reverse a judgment of the Court of Appeals so that the use of the word "review" in both Section 2 and Section 6 of Article IV was intended to designate what is now an appeal on questions of law and could, under no circumstances, be interpreted or understood to include a retrial of the facts.

In 1936, the procedural sections of the General Code, dealing with appeals and proceedings in error, were amended. Prior to the amendments, appeals (meaning a retrial of the facts) were provided for under Title V "Procedure in Court of Appeals on Appeal," Chapter 1. Sections 12223 and 12224, General Code, provided:

(Section 12223, General Code.) "The Court of Appeals shall have jurisdiction of certain cases, as hereinafter provided, by appeal; and the trial therein shall be conducted in the same manner as in the Common Pleas Court, and upon the same pleadings, unless amendments are permitted or ordered by the Court of Appeals."

(Section 12224, General Code.) "In addition to the cases and matters especially provided for, an appeal may be taken to the Court of Appeals by a party or other person directly affected, from a judgment or final order in a civil action rendered by the Common Pleas Court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist, and from an interlocutory order made by the Common Pleas Court, or a judge thereof, dissolving an injunction, in a case in which it had original jurisdiction."

That part of this section conferring jurisdiction to appeal judgments of the Court of Common Pleas in cases where the right to trial by jury did not exist and where the order appealed was not a final order was held unconstitutional in the case ofWagner v. Armstrong, 93 Ohio St. 443, where, in the first paragraph of the syllabus, the court said:

"Section 12224, General Code, purporting to vest the Courts of Appeals with jurisdiction in the trial of cases on appeal, is unconstitutional and void. The jurisdiction of the Courts of Appeals in the trial of cases on appeal is expressly limited by the constitution to chancery cases, and this jurisdiction cannot be enlarged by the General Assembly."

If the Supreme Court had considered that the words following the phrase "and appellate jurisdiction in the trial of chancery cases," which phrase is "and to review, affirm, modify or reverse * * *," included the retrial of the facts in cases other than chancery cases, the result of this decision would have been completely different. The court said on page 446 of the opinion:

"Here is a plain attempt to enlarge the jurisdiction on appeal of the Courts of Appeals. This is a power that the General Assembly does not possess. It was decided by this court in The Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, that the jurisdiction of the Courts of Appeals was unalterably fixed by Section 6, Article IV of the new Constitution [1912] and the Legislature consequently could neither enlarge nor diminish it. Section 12224 attempts to enlarge the jurisdiction of the Courts of Appeals in appeal cases. When it says that all cases may be appealed wherein the right of trial by jury did not exist, it contravenes the jurisdiction fixed by the Constitution wherein it limits the jurisdiction by way of appeal to chancery cases. The test of the right to trial by jury is no longer the determinative one."

The court on page 447 also gives support to the court's conclusion in the Cincinnati Polyclinic case, supra, that the words, "as may be provided by law," did not place the jurisdiction of the Courts of Appeals within the control of the Legislature. On page 417 of the Cincinnati Polyclinic case, the court said:

"* * * The Legislature under this amended section has authority to provide the method for perfecting an appeal and the procedure in error cases, but it has no power to enlarge or limit the appellate jurisdiction of Courts of Appeals."

But even if it should be concluded that by simply changing the place of the words, "as provided by law," in the jurisdictional grant of the Constitution, defining the jurisdiction of the Courts of Appeals, from the end of the clause to a place near the beginning, it was the purpose of the constitutional amendment to return to the Legislature (as was true prior to 1912) the right to fix and control the jurisdiction of the Courts of Appeals, then such right would be circumscribed by the phrase "to review, affirm, modify, set aside, or reverse judgments or final orders," thus limiting the power of the Legislature to provide for appeals on questions of law.

In the chapter on "Appeals" Sections 12223 to 12240, General Code, providing for appeals prior to 1936, the word, "review," does not appear.

Proceedings in error in the Court of Appeals were then provided for in Chapter 2 of Title VI of the General Code, Sections 12247 to 12249, inclusive. Such a proceeding was accomplished by filing a petition in error in the reviewing court. Again the word, "review," does not appear in the chapter.

As has been indicated, effective January 1, 1936, the chapters on appellate procedure were amended under Title V, Sections 12223-1 through 12223-47, General Code (now Sections2505.01 to 2505.45, inclusive, Revised Code). Under the definition section of the new act, Section 12223-1, General Code (now Section 2505.01, Revised Code), the Legislature clearly set out the meaning of the terms used in the act. It was provided: (The following is as appears in the Revised Code. There is, however, no change in substance.)

"As used in the Revised Code:

"(A) `Appeal' means all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal or commission.

"(B) `Appeal on questions of law' means a review of a cause upon questions of law including the weight and sufficiency of the evidence.

"(C) `Appeal on questions of law and fact' means arehearing and retrial of a cause upon the law and the facts and is the same as an `appeal on questions of fact.'" (Emphasis added.)

Section 2505.01 (A), Revised Code, before and after amendment, clearly supports the use of the word "review" as authorizing only an appeal on questions of law.

Webster's Seventh New Collegiate Dictionary defines the word, "review," as used in judicial proceedings: "to re-examine judicially * * * or renewed study of material previously studied," which clearly supports the meaning ascribed to the word "review" in the Constitution of Ohio as amended in 1912 and 1944, and Section 2505.01, Revised Code, just quoted.

To repeat for the purpose of emphasis, the term "review" as thus defined and used in Section 2505.01, Revised Code (Section 12223-1, General Code, of the Appellate Procedure Act, which was adopted in 1935, effective January 1, 1936), was intended to designate an appeal on questions of law and not a proceeding in the nature of a retrial of the issues joined without concern for the incidents occurring or the judgment or decree entered at the trial by the original trial court.

The historical background of the use of the word "review" in defining the jurisdiction of the Court of Appeals clearly shows the sense which the members of the constitutional convention intended to ascribe to it, that is that it meant a review of the trial record in what was known in 1912 as an error proceeding. Professor W. K. Gardner, in an address before the Ohio State Bar Association, November 29, 1945 (31 Ohio Opinions, 561), in considering this question, said, in part, that the word "review" was used to define an error proceeding. The only published view to the contrary is that of Honorable Simon Ross, formerly a Judge of the Court of Appeals of the First Appellate District, in an article published in 31 Ohio Opinions, 358, at page 360. No authority is cited for his conclusion that the word "review" could be used to indicate an appeal as used in the Constitution of 1912. The word, as indicated, was used for the first time in the constitutional amendment of 1912.

The construction of the jurisdictional phrase in the Constitution of 1912 clearly requires the conclusion, as stated by Professor Gardner, as herein quoted. The phrase, as quoted above, "and appellate jurisdiction in the trial of chancery cases, and to review, affirm * * *," clearly provides for two proceedings, one the retrial of chancery cases and the other, separated by the conjunction "and," the power to review in an error proceeding judgments of courts of record. (Emphasis added.)

The cases also support this meaning of the word "review." SeePiasick v. Industrial Comm. (1924), 109 Ohio St. 570, where, in the first paragraph of the syllabus, it is provided, in part:

"* * * and the cause proceeds to verdict and judgment in that court, such judgment is subject to review upon error proceedings in the Court of Appeals * * *." (Emphasis added.)

Historically, the distinction between a "review" and a "retrial" in an appellate court is unmistakably clear as those terms were used at the beginning of our court system and until the creation of the Circuit Court of Appeals in 1883. Error proceedings, as such, were not provided for, except when the Supreme Court convened in Columbus to consider questions of law reserved for the consideration of the full bench after concluding their respective duties while on circuit. After the creation of the District Court in 1851, retrials could be had as set out in 3 Curwen, Statutes of Ohio, Chapter 1124 (page 1725), 50 Ohio Laws, 93, Section 1, March 23, 1852, where it was provided:

"Appeals may be taken from all final judgments in civil cases at law, decrees in chancery, and interlocutory decrees dissolving injunctions rendered by the Court of Common Pleas, the Superior and Commercial Courts of Cincinnati, and the Superior Court of Cleveland, in which said courts have original jurisdiction, by any party against whom such judgment or decree shall be rendered, or who may be affected thereby, to the District Court; and the cause so appealed shall be again tried, heard and decided, in the District Court, in the same manner as though said District Court had original jurisdiction of the cause."

The constitutional amendment of 1883 created the Circuit Court of Appeals. Its jurisdiction was provided for as to appeals by Section 5226, Revised Statutes. This section provided the right of appeal to the Circuit Court of Appeals, meaning a retrial of the issues of fact in all civil cases in which "* * * the right to demand a jury therein did not exist * * *." Proceedings in error to the Circuit Court of Appeals were provided by Section 6709, Revised Statutes. The proceedings as thus indicated had no relationship one with the other. The word "review" does not appear within the Constitution as amended in 1883 or the statutes cited dealing with appeals or error proceedings.

An examination of the minutes of the Constitutional Convention of 1912, in considering the jurisdiction of the Courts of Appeals, was reviewed by Professor Gardner, as published in 31 Ohio Opinions, 561, supra, in which he said:

"In 1912, delegates to the constitutional convention met and their stated purpose was to eliminate lengthy and expensive legal procedure. Accordingly, the original draft of Section 6, Article IV, did not, within the contemplation of the delegates, provide for any trial de novo or retrial on appeal. It read:

"`The Courts of Appeals shall have * * * appellate jurisdiction to review, affirm, modify or reverse the judgments of the Courts of Common Pleas,' etc.

"There was no provision for retrial on appeal. At first this appeared to have been accepted.

"Some time later some of the delegates became fearful that they were taking away valuable rights from the people — or the lawyers — and an amendment was proposed to the effect that in all actions where the right of trial by jury did not exist there should be a trial de novo on appeal.

"After much debate the proposed amendment was tabled.

"It was later said by the Supreme Court that there were many lawyers of recognized ability who were members of that body. If you will read some of the debates at this convention you might suspect that the recognition was not wholly unwarranted — in some instances.

"Some three or four weeks later the subject was again brought up and another amendment was proposed in the following terms:

"After the words `appellate jurisdiction' insert the words `in the trial of chancery cases, and,' — so that the provision then read:

"`The Courts of Appeals shall have * * * appellate jurisdiction in the trial of chancery cases, and to review, affirm, modify or reverse the judgments of the Courts of Common Pleas,' etc.

"The delegates to this convention did not consider that the term `review, affirm, modify or reverse judgments' authorized a trial de novo on appeal.

"After much debate for and against, the proposed amendment was adopted and written into the Constitution as it existed up until the 1944 amendment.

"Thus, two types of jurisdiction on appeal were provided for. First, the trial of chancery cases, and secondly, `to review, affirm, modify or reverse judgments,' which included judgments in actions at law and also in chancery cases."

From the foregoing it is clear that including some part of the right of "appeal" as the word was then understood was granted as a compromise, and was an exception to the fundamental purpose of the convention which was to simplify the judicial process by providing for one trial in a trial court and the right to one review by an appellate court.

Much has been written on the need for a retrial rather than a review of a judgment or decree in a chancery case because the judgment on the issues of fact is determined by a single judge and the right to a jury trial of the issues of fact does not exist. This fact is also true of many other cases such as divorce. If there should be two trials in cases where a jury cannot be demanded, then all such cases should have the same right as was true until the amendment to the Constitution in 1912. The amendment of 1944 put all cases, where a jury trial could not be demanded as of right, in the same category. The announced purpose of those who drafted the amendments to the Constitution of 1912 to simplify judicial procedure and to provide for one trial and one review came closer to realization by the amendment of 1944.

The cases most frequently cited said to suggest the rule that law and fact appeals are still available under the Constitution will now be considered.

In the case of Youngstown Municipal Ry. Co. v. City ofYoungstown (1946), 147 Ohio St. 221, the Supreme Court was called upon to consider the jurisdiction of the Court of Appeals after the amendment to Section 6, Article IV of the Constitution in 1944. The case was one in chancery as filed in the trial court. In an appeal to the Court of Appeals on questions of law and fact that court dismissed the appeal on law and fact on the ground that under the amendment of Section 6 of Article IV of the Constitution in 1944, the Court of Appeals was without jurisdiction to retry the facts in a chancery case. Upon appeal to the Supreme Court, the court said at the very beginning of the opinion:

"The sole question now before the court for consideration is whether the Court of Appeals was in error in dismissing the plaintiff's appeal on questions of fact and law on the ground that it is without appellate jurisdiction in the trial of chancery cases."

In considering this question, the court held:

"1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

"2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted."

In coming to this conclusion, the court pointed out that the amended provisions of the appellate courts' jurisdictional sections of the Constitution, in part, provided:

"All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed."

On the basis of this provision, which is the sole authority for this decision (this provision has been deleted by amendment effective November 6, 1959), as shown by the syllabus, the right of the Court of Appeals to retry the facts in a chancery case was said to continue on the authority of "existing law," that is, the constitutional provisions before amendment and statutory provisions not inconsistent therewith, in force prior to the amendment. At that time, what is now Chapter 2505 of the Revised Code provided the procedure for both the retrial of the facts in chancery cases and appeals on questions of law. It must be noted that the opinion does not hold that jurisdiction to retry the facts in chancery cases was provided for under the phrase of the amendment "and such jurisdiction as may be provided for by law to review, affirm, modify or reverse judgments. * * *." Certainly, if constitutional authority providing for law and fact appeals could be found in the quoted amended provisions (which, as indicated above, was not the fact), there were existing procedural statutes to support such appeals and the decision did not need to look to the repealed provisions of Section 6, Article IV and the procedural statutes as to appeals and error proceedings in force prior to the amendment to support the conclusion reached. The case, therefore, is not authority for the claim that under the amended provisions of 1944 (Section 6, Article IV) the Legislature is now authorized to provide or authorize appeals on questions of law and fact. Since that decision, the Legislature has "acted" by amending Sections2501.02 and 2505.21, Revised Code, setting out in detail the actions included in the term, "chancery cases," and the method of trial in law and fact appeals, supplementing existing statutes on that subject, and since the constitutional authority relied on has been repealed, the authority of the Youngstown Ry.case, supra, cannot now be relied upon as determining the right of the Court of Appeals to retry the facts in chancery cases. It is the conclusion of the writer of this dissenting opinion that all the sections of the Code, including those just cited, providing for or implementing the right to retry the facts in chancery cases in the Court of Appeals, are unconstitutional for the reasons hereinbefore stated.

The case of Bradford et al., Admrs., v. Micklethwaite,163 Ohio St. 301, is cited as supporting the conclusion that under Section 6, Article IV of the Constitution, as amended in 1944, the Court of Appeals has retained jurisdiction to retry the facts in chancery cases. However, the court, on page 302 of the opinion, stated:

"The sole question with which this court is now concerned is whether the Court of Appeals should hear and determine this controversy as an appeal on questions of law and fact, as contended by the appellants, or whether that court was correct in determining that the cause should be heard and disposed of as an appeal on questions of law only, without a retrial of the facts."

The basis of the court's decision was that the case was not a chancery case and, therefore, the Court of Appeals was correct in dismissing the appeal on questions of law and fact. The question of the right of the Court of Appeals to retry the facts was not suggested to the court nor did the court give consideration to that question in the three majority opinions. The principal opinion was concerned with the question of whether or not the action in the trial court was in chancery. The judgment of the Supreme Court affirmed the judgment of the Court of Appeals holding the action to be one at law and not appealable on law and fact. The concurring opinions were concerned with the question of whether or not the order of the Court of Appeals, dismissing the appeal on questions of law and fact and retaining such appeal on questions of law, was a final appealable order. The conclusion reached that it was an appealable order and the cases relied on in reaching that conclusion have since been challenged by the case ofHumphrys v. Putnam, 172 Ohio St. 456, holding an entry dismissing an appeal on law and fact and retaining it on law was not an appealable order. But in the dissenting opinion (163 Ohio St. 317), Judge (now Chief Justice) Taft, in considering the jurisdiction of the Court of Appeals under the amended provisions of Section 6, Article IV of the Constitution, effective January 1, 1945, concluded that such an order was not a final order, and said on page 323:

"That section as amended in 1944, also provided:

"`All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed * * *.'

"Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, merely represents a holding that this last-quoted portion of Section 6 of Article IV of the Constitution meant what it said. The appellate procedure statutes in force at the time of its adoption certainly provided for an appeal that would include a retrial of the facts by the Court of Appeals.

"Thereafter, however, there was obviously no constitutionalright to a retrial of the facts by the Court of Appeals and this court recognized that in 1952 when, by amendment of Rule 24, it made allowance of a motion to certify the record a prerequisite to review pursuant to that rule." (Emphasis added.)

The case of Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, reconsidered the question of whether or not the granting of a motion for a new trial constituted a final appealable order. The court said in the first paragraph of the syllabus:

"1. The amendment of Section 6, Article IV of the Constitution of Ohio, adopted November 7, 1944, and effective January 1, 1945, is the sole source of jurisdiction of the Court of Appeals and such jurisdiction can not be enlarged by the General Assembly. The latter may legislate as to the jurisdiction of the Court of Appeals to review, affirm, modify, set aside or reverse final orders or judgments of boards, commissions, officers, tribunals or courts of record inferior to the Court of Appeals, but it has no authority to confer on the Court of Appeals jurisdiction to review any orders which do not constitute final orders or judgments."

And on page 11 of the opinion, the court said:

"When the people amended Section 6, Article IV of the Constitution, by their vote on November 7, 1944, they could have given the General Assembly unlimited power to confer appellate jurisdiction on the Courts of Appeals, or they could have given the Courts of Appeals the authority to review orders granting motions for new trial. But they did not do so. They did enlarge the jurisdiction of Courts of Appeals by giving them appellate jurisdiction, as may be provided by law, to review judgments or final orders of boards, commissions, officers and tribunals, in addition to courts, but they still kept in the Constitution the provision that the review shall be confined to judgments or final orders."

It should be noted that one of the dissenting opinions based the right of the Legislature to define the meaning of "what constitutes a final order" on the fact that the constitutional amendment to the jurisdiction of the Court of Appeals of 1944, in the use of the phrase at the beginning of the appellate jurisdictional grant: "Such jurisdiction as may be provided by law to review, affirm * * *" returned the power to fix the appellate jurisdiction of the court to the Legislature. This view was not concurred in by any other member of the court as is demonstrated by the majority opinion and the other dissenting opinion filed in the case so that the holding in theCincinnati Polyclinic case, supra, that the phrase "as may be provided by law" did not place the jurisdiction of the Court of Appeals within the control of the Legislature, stands unchallenged. The court in the trial of the foregoing cases was not called upon to consider, nor did it consider, the question of whether or not under the 1944 amendment, the Court of Appeals was vested with jurisdiction to retry the facts in chancery cases.

It must be stressed that the change of the manner of conducting a retrial of a chancery case provided by Section2505.21, Revised Code, as amended effective October 4, 1955 (if that part of the section is constitutional), did not create a new proceeding on review. The purpose to be accomplished by such amendment was to relieve witnesses from the arduous task of being called for successive appearances in the trial of the same case and to require the parties to present all the evidence available to them, which they desired to present in the first trial so that such trial is, in fact, a full trial of the issues and not a discovery proceeding, presenting only so much of the evidence as will successfully prevent being directed out of court or from an entry of judgment as a matter of law. Such a proceeding, when conducted as provided by Section 2505.21, Revised Code, is a trial of the issues of fact, and not a review of the record on claims of error.

For the reasons, therefore, that by the amendment of 1944 to Section 6 of Article IV of the Constitution of Ohio, the words "in the trial of chancery cases" were deleted from the jurisdictional grant to the Court of Appeals (which was the basis or authority upon which trials de novo were had in chancery cases); that the Supreme Court determined in the case of Green v.Acacia Mutual Life Ins. Co. (1951), supra, as it had in a number of cases decided prior to 1945, that Section 6 of Article IV was the sole source of the jurisdiction of the Court of Appeals and that such jurisdiction could not be enlarged by the General Assembly so that the power of the assembly is limited in providing for or dealing with jurisdictional and procedural rights and rules as circumscribed by the phrase, "such jurisdiction as provided by law to review, affirm, modify, set aside or reverse the judgments or final orders * * * of courts of record inferior to the Court of Appeals * * *"; and that the word "review" as used in this section of Article IV of the Constitution, as amended in 1944, in the context in which it is found, refers to, and is limited in meaning as thus used, to appeals on questions of law; it is clear that this court cannot be vested with jurisdiction to retry the facts in chancery cases. This meaning of the word "review" is clearly supported by the context in which it was used in Sections 2 and 6 of Article IV of the Constitution as amended in 1912 and the statutory definition of "review" in the Appellate Procedure Act of 1936 (Section 12223-1, General Code) in force and so understood for nine years before the amendment of 1944 was adopted by the people.

In determining the meaning of constitutional provisions, we must be concerned with the words used in the provisions thereof and in their ordinary legal sense and not what may have been said about the effect of the amendment before or after its passage by so-called sponsors.

The motions to discharge the restraining order and to dismiss the appeal on law and fact and retain it on law should be granted.

In support of this conclusion, the writer of this dissenting opinion includes, without quoting in full herin, the text of an article: "Right of the Court of Appeals to Entertain Jurisdiction in Law and Fact Appeals" published in 35 Ohio BAR, page 1150 (Oct. 8, 1962). See, also, Skeel's Ohio Appellate Law 1961, Cumulative Service, 88 et seq., Section 200-1; "What Did The 1944 Amendment To The Constitution of Ohio Do To The Jurisdiction of The Court of Appeals," by W. K. Gardner, 31 Ohio Op., 561; Buckeye Union Casualty Co. v. Braden, 116 Ohio App. 348.